Houston Criminal Defense Attorney John Floyd Discusses the U.S. Supreme Court’s Decision in Boumediene v. Bush, The Balance of Powers


In a sharply divided 5-4 ruling, the United States Supreme Court recently extended the privilege of the writ of habeas corpus to “detainees” held Guantanamo Bay, Cuba – commonly referred to as “Gitmo.” The decision marked the first time in the court’s history that it has ruled that non-citizens held in custody by the United States in a territory over which another country has de jure sovereignty enjoys the protection of the Constitution.


The far-reaching implications of this decision not only drew blistering criticism from the four dissenting justices – most notably Justice Antonin Scalia – but triggered a firestorm of debate among politicians and media pundits (many of whom now consider themselves an indispensable component of any social discussion) about its potential impact in the “war on terrorism.” Anticipating this sort of intense political and social reaction, the majority in two of its concluding paragraphs tried to allay these concerns by saying:


“Our opinion today does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of these powers is vindicated, not eroded, when confirmed by the Judicial Branch. 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. Some of these petitioners have been in custody six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.


“”Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” See: Boumediene v. Bush, 553 U.S. _____ (2008), Slip Opinion Nos. 06-1195 and 06-1196.

What placed the Supreme Court in the eye of the proverbial needle?




In 2001 Congress enacted a law entitled Authorization for Use of Military Force (AUMF) that gave the President the authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”


AUMF gave the president sweeping powers to determine which, if any, nations, organizations, or person participated in any way in the 9/11 attacks and granted to him the authority to use “all necessary and appropriate force” to make sure that terrorist attacks such as 9/11 did not occur again. President George W. Bush embraced this Congressional mandate. He utilized its authority to launch a military invasion of Afghanistan to eradicate al Qaeda training camps and remove the “Taliban” government from power.


This invasion resulted in the military and CIA capturing a number of foreign fighters suspected of being members or associates of al Qaeda. An immediate question presented itself: what would the United States do with these so-called “enemy combatants?” Some were transported to “secret” CIA prisons where they were subjected to torture and “enhanced interrogation techniques.” Others were transported to the military base in Guantanamo Bay, Cuba where they were housed, and subjected to torture, in hastily constructed detention facilities.


Cuba was a territory seized by America during the Spanish-American War (1898). In 1930 the United States and Cuba entered into a “lease” agreement whereby Cuba would retain “ultimate sovereignty” over the territory of Guantanamo Bay while the U.S. would have “complete jurisdiction and control” over the territory. The United States erected a naval base on the territory. The two countries on May 29, 1934 signed a treaty entitled Treaty Defining Relations with Cuba that says Cuba enjoys no “rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base.” See: Boumediene, Slip Opinion at 23.


Guantanamo Bay, therefore, is not formally a part of the United States. It is a territory located outside the United States. Inasmuch as the Supreme Court had never ruled that non-citizens held in the custody of the United States in a territory over which another country had de jure sovereignty enjoyed constitutional protections, the U.S. military reasonably assumed that it had the authority under the direction of the President to detain “enemy combatants” indefinitely in its facilities at Guantanamo Bay without providing them with any constitutional rights.


Shortly after the invasion of Afghanistan the U.S. Supreme Court gave tacit approval to this military assumption by saying that enemy combatants who fought against the United States in Afghanistan could be detained “for the duration of the particular conflict in which they were captured” and that this principle “is so fundamental and accepted [as] an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” See: Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2002).


The Defense Department sought to legitimize its indefinite detention of captured foreign fighters and suspected terrorist detainees by establishing Combatant Status Review Tribunals (CSRTs) to officially determine whether those fighters could be designated as “enemy combatants” under departmental definitions. Attorneys for some of the inmates designated as “enemy combatants” filed writs of habeas corpus in the United States District Court for the District of Columbia challenging those CSRT determinations. The district court dismissed the writs for lack of jurisdiction because Guantanamo Bay is outside the sovereign territory of the United States. The case worked its way to the U.S. Supreme Court, and in 2004, the court appeared to back away from Hamdi by extending statutory habeas corpus jurisdiction to Guantanamo Bay detainees. See: Rasul v. Bush, 542 U.S. 466, 473 (2004).


In the wake of the Rasul decision, the “enemy combatant” cases were consolidated and allotted to two separate federal district court judges in Washington. In one proceeding U.S. District Court Judge Richard J. Leon granted a government motion to dismiss saying the enemy combatants had “no rights” that could be litigated through habeas corpus; and in the other proceeding U.S. District Court Judge Joyce Hens Green reached an opposite conclusion, finding that the combatants enjoyed rights under the Due Process Clause of the Fifth Amendment that could be litigated through habeas corpus. See: Khalid v. Bush, 355 F.Supp. 311, 314 (D.C. 2005); In re Guantanamo Detainee Cases, 355 F.Supp. 443, 464 (D.C. 2005).

While these two cases were on appeal to the United States Court of Appeals for the District of Columbia, Congress enacted the Detainee Treatment Act (DTA) which set forth very strict procedures for reviewing the status determinations made by the CSRTs. The DTA also amended the federal habeas corpus statute, 28 U.S.C. § 2241, to provide “no court, justice, or judge shall have jurisdiction to hear or consider … an application for writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanmo Bay, Cuba.”


The Supreme Court responded that same year say saying this amendment to § 2241 did not apply to cases pending before the court when DTA was enacted. See: Hamdan v. Rumsfeld, 548 U.S. 557, 576-77 (2005).


Determined to force a showdown with the Supreme Court, Congress responded to Hamdan by enacting the Military Commissions Act of 2006 (MCA). Article 7 of the MCA effectively stripped federal courts of jurisdiction to hear habeas corpus challenges not only by those foreign fighters already determined to be “enemy combatants” but by those awaiting such determinations. Subsection 2 of article 7 also stripped federal courts of jurisdiction to hear any other legal challenges, no matter how styled, challenging any conditions of their detention.


In the meantime, the D.C. Court of Appeals consolidated all the “enemy combatant” cases, and citing § 7 of the MCA, concluded last year that the MCA stripped all federal courts of jurisdiction to hear habeas corpus applications filed by designated enemy combatants. See: Boumediene v. Bush, 476 F.3d 981 (CADC 2007). The Supreme Court granted certiorari to decide the habeas issue without further debate.




The Government of the United States forcefully argued that non-citizens designated as enemy combatants and detained in a territory outside the country have no constitutional rights, including the privilege of the writ of habeas corpus guaranteed by the Suspension Clause of the U.S. Constitution. Boumediene, Slip Opinion, at 8. Central to this argument was the government’s firm stance that the common-law writ of habeas corpus as it was devised in England extended only to those territories over which the Crown had sovereignty. Attorneys for Boumediene countered by saying that the writ followed the Crown’s officers to any territory. The Supreme Court observed:


“ … Diligent search by all parties reveals no certain conclusions. In none of these cases cited do we find that a common-law court would or would not have granted or refused to hear for lack of jurisdiction, a petition for writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.” Id., Slip Opinion, at 16.


The issue of sovereignty proved thorny for the court. Its prior cases did not provide the court with a clear road map showing one way or the other on the issue of whether habeas corpus is available to an enemy combatant detained in a territory outside the country. The government argued that since there was no case showing the writ had been extended to anyone outside a country’s sovereignty, the privilege of the writ, therefore, should not be extended in those cases. The petitioners in Boumediene, however, argued that since there was no case showing a court had refused to exercise jurisdiction in such a case, it implied that the court could extend jurisdiction in such cases. Id., Slip Opinion, at 22.


While the Supreme Court conceded there had been little need “to explore the outer boundaries of the Constitution’s geographic reach,” the court found some constitutional direction in the fact that the Constitution applied to new territories acquired or seized by the United States, saying this undermined “the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.” Id., Slip Opinion at 25.


The court found additional constitutional guidance from a series of cases at the turn of the 20th century in which the court grappled with the Constitution’s “geographic scope.” These cases came under judicial scrutiny after the United States acquired the non-contiguous territories of Puerto Rico, Guam, and the Philippines – all of which were ceded to the U.S. by Spain after the Spanish-American War. Congress had decided to “discontinue” its practice of routinely extending “constitutional rights” to territories by statute. Id., Slip Onion, at 26. This led to a series of decisions known as the “Insular Cases” which addressed whether the Constitution, by its own force, applied to a territory that is not a state. The Insular Cases are as follows:


DeLima v. Bidwell, 182 U.S. l (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 (1901)

Hawaii v. Mankichi, 190 U.S. 197 (1903)

Dorr v. United States, 195 U.S. 138 (1945)


The Supreme Court held that “the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position.” Id., Slip Opinion, at 27. For example, the former Spanish colonies functioned under a “civil-law system” that had no experience with Anglo-American legal traditions, such as grand and petit juries. Id. Applying American constitutional principles of law would have required a complete overhaul of the legal system in the Philippines. The Court, therefore, was reluctant to “risk the uncertainty and instability” that would have ensued had such an overhaul taken place, particularly since the United States planned to grant the islands its independence.


These “practical considerations” led to what the Court called “the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood, but only in part in unincorporated Territories.” Id., Slip Opinion, 27-28. See also: Dorr v. United States, supra, 143 [“Until Congress shall see fit to incorporate territory ceded by treaty into the United States … the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation”].


Fifty years later the Insular Cases influenced significantly the Supreme Court decision in Reid v. Covert, 354 U.S. 1 (1957). This case found that the spouses of American servicemen, who lived on American military bases in England and Japan, were entitled to a trial by jury under the Fifth and Sixth Amendments of the United States Constitution. The spouses had been charged with crimes committed in those counties and tried before military courts in accordance with executive agreements between all three countries. The fact that the spouses were “American citizens was a key factor in the case and was central to the plurality’s conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States.” See: Boumediene, supra, Slip Opinion at 29-30.


But “practical considerations” related to the place of confinement and trial of these American civilians splintered the plurality and the concurring justices in the Reid decision. While some of the justices in Reid found it was practical to grant American civilians a right to a jury trial, a judicial breach erupted when other justices pointed to the court’s previous decision in In re Ross, 140 U.S. 453 (1891). In that case the court held that under certain circumstances American civilians were not entitled to be indicted and tried by a jury while abroad. Ross – a British subject – was a sailor on an American merchant vessel in Japanese waters who was tried by an American consular for the murder of a fellow crewman. Id., 140 U.S. at 459, 479. The court concluded that Ross, whose citizenship did not play a role in the decision, had received all the rights of a similarly situated American citizen and, in effect, a trial by jury would have been impractical given the circumstances of the case. Id., at 479.


The concurring Justices in Reid interpreted Ross to mean that under certain circumstances, involving “practical considerations,” the jury provisions of the Fifth and Sixth Amendments do not apply to Americans being tried by Americans abroad. The Reid plurality, however, “doubted that Ross was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens.” Boumediene, supra, Slip Opinion at 31.


“Practical considerations,” as much as the core issue of sovereignty, would influence yet another Supreme Court decision concerning constitutional rights being extended abroad. See: Johnson v. Eisentrager, 339 U.S. 763 (1950). In that case the Supreme Court addressed the issue of whether enemy aliens detained at the Landsberg Prison in Germany and convicted of war crimes were entitled to habeas corpus jurisdiction. The court balanced the costs and difficulties associated with the military having to produce the prisoners at a habeas corpus proceeding against the constitutional necessities of such a proceeding before deciding to deny the enemy aliens access to the writ. The court noted that “at no relevant time were [these prisoners] within any territory over which the United States is sovereign and [that] the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” Id., 339 U.S. at 778. See also: Boumediene, supra, Slip Opinion at 32.


The Government in Boumediene tried to convince the court that the Eisentrager court had adopted a “formalistic, sovereignty-based test” for determining the reach of habeas corpus and that the court should confine its analysis solely to the issue of sovereignty. The Boumediene court rebuffed the Government’s narrow interpretation of Eisentrager for three reasons:


The court rejected the Government’s premise that the Eisentrager language referencing the prisoners’ status and U.S. sovereignty was the “only authoritative language” in the decision and that the rest of the decision’s language was purely dicta. The court pointed out that “practical considerations” (costs, time, and difficulties) also played an integral role in the Eisentrager conclusion not to extend the reach of habeas corpus.


“ … because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison … it is far from clear that the Eisentrager Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. The Justices who decided Eisentrager would have understood sovereignty as a multifaceted concept…Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. That the Court devoted a significant portion of [its] discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it…”


The court said that accepting the Government’s reading of Eisentrager as correct, “the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases (and later Reid’s) functional approach to questions of extraterritoriality. We cannot accept the Government’s view. Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid on the other.”


Boumediene, supra, Slip Opinion at 33-34.


The Supreme Court also observed that the Government’s “formal sovereignty-based test” argument also raised “troubling separation-of-powers” concerns. The court noted that the United State has maintained absolute, unfettered control of Guantanamo Bay for more than 100 years but without any claim of sovereignty. The Government disingenuously argued that because the United States had relinquished all claims of sovereignty, the constitution does not apply to non-citizens detained there. The Supreme Court said “the necessary implications of [this] argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.” Id., at 35.


The Supreme Court was not about to allow such a raw usurpation of power, not even under the political guise of a “war on terror.” The high court drew the sharp line in the constitutional sand: “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 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.’ … Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on and off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is.’” Id., at 35-36.




Article I, § 9, cl. 2 of the United States Constitution provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This constitutional provision has become known in legal parlance as the “Suspension Clause.” The Supreme Court in Eisentrager outlined a fact-specific framework for determining the constitutional reach of this Clause. Beyond the “practical considerations” discussed above, the Eisentrager court found the following factors relevant in its decision not to extend the reach of the clause to the Landsberg prison inmates:


The inmates were enemy aliens

The inmates had never been or resided in United States

The inmates were captured outside the U.S. territory and held in military custody as prisoners of war

The inmates were tried and convicted by a Military Commission sitting outside the United States

The inmates were convicted for offenses of war committed outside the United States

The inmates were at all times imprisoned outside the United States

Id., 339 U.S. at 777.


The Boumediene court found that based on these Eisentrager factors and the court’s prior “extraterritoriality opinions” (e.g., Insular Cases and Reid), it found three factors central to its conclusion that the Suspension Clause reached the “enemy combatants” detained at Guantanamo Bay:


The citizenship of the detainee and the adequacy of the process through which that status determination was made;

The nature of the sites where apprehension and then detention took place; and

The practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

Boumediene, supra, Slip Opinion at 36-37.


Factor One: The court contrasted the “enemy aliens” in Landsberg Prison with the “enemy combatants” at Guantanamo Bay. The Landsberg inmates did not contest their status as “enemy aliens” while the detainees at Guantanamo Bay have vigorously contested their status as “enemy combatants.”


With respect to the “adequacy of the process” by which those “enemy” determinations were made, the court concluded that the “CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a ‘Personal Representative’ to assist him during CSRT proceedings, the Secretary of Navy’s memorandum makes clear that person is not the detainee’s lawyer or even his ‘advocate.’ The Government’s evidence is accorded a presumption of validity. The detainee is allowed to present ‘reasonably available’ evidence … but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings.” Id., at 37-78 [internal citations omitted].


In effect, the CSRT proceedings are a due process sham. They exist only as a futile attempt to satisfy international human rights criticism. Guilt is pre-determined in the investigation/interrogation process where torture, more often than not, elicited the incriminating evidence of guilt. The CSRT proceedings simply provide an official forum in which to make the guilt determination official.


Factor Two: The court found that the Guantanamo Bay detainees are “similarly situated” to the Landsberg inmates in that “the sites of their apprehension and detention are technically outside the sovereign territory of the United States.” Id. While this fact weighed against finding that the Guantanamo Bay detainees enjoyed protections under the Suspension Clause, the court decided there are significant differences between Guantanamo Bay in 2008 and the Landsberg prison in 1950. Id. The United States did not have complete control over Landsberg. It shared jurisdiction and control of the prison with other Allied Forces, making it answerable to its allies for activities occurring in the prison, and the U.S. planned to return control of the prison to Germany as soon as practical. Id., at 39.


Guantanamo Bay, on the other hand, effectively belongs to the United States. There are no immediate plans to return the territory to Cuba. As the court observed: “In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.” Id.


Factor Three: The Boumediene court quickly pointed out, as the Eisentrager court had in 1950, that there “are costs to holding the Suspension Clause applicable in a case of military detention abroad.” Id. Not only do habeas proceedings entail an expenditure of funds but they divert military personnel from perhaps more pressing duties. While these realities had to be considered, the court concluded they were not dispositive.


“Compliance with any judicial process requires some incremental expenditure of resources,” the court said. “Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdictions to hear detainees’ claims. And in light of the plenary control the United States asserts over the vase, none are apparent to use.” Id., at 39-40 [internal citation omitted].




The Government in Boumediene failed to present any “practical” reasons why the detainees at Guantanamo Bay should be denied access to habeas corpus. The Government made broad assertions about “security concerns” and “dangers” associated with the war on terror. But it was a pie in the sky argument – all crust and no filling. While the threats of terrorism are real, the ones presented by the Government did not justify a suspension of the writ of habeas corpus. The Boumediene court frankly discussed the “threat” issue:


“The real risks, the real threats of terrorist attacks are constant and not likely to soon abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.


“In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time…” Id., at 65.


The court, however, observed that the Boumediene detainees had been held for as long as six years awaiting CSRT determinations without any judicial remedy available to them. Forcing these detainees to go through the review proceedings set forth under the DTA would “require additional months, if not years, of delay,” the court said. Id., at 66.


But it must be emphasized here that that light at the end of the tunnel may indeed be just another train. The Boumediene decision does not offer a broad license to assume habeas corpus will be beneficial remedy for the Guantanamo detainees, particularly with respect to the abuses they have been subjected to. As the court itself cautioned:


“Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions to the District Court … Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment the enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with those issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.” Id., at 66-67.


But at least the judicial branch exercised its balancing power to check the constitutional abuses of the Executive and Legislative branches by lifting the restrictions they had imposed on habeas corpus. That is cause for constitutional celebration.