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Boumediene v. Bush: The Suspension Clause and Guantanamo Bay


Erik L. Smith


Boumediene v. Bush, 533 U.S. ___, 2008 U.S. LEXIS 4887.



In the Authorization for Use of Military Force, Congress empowered the president to use all needed and proper force against persons he determined had planned, authorized, committed, or aided the 911 terrorist attacks. The Supreme Court recognized that detaining persons captured in Afghanistan during that conflict was an accepted incident of war.1Hamdi v. Rumsfeld (2004), 542 U.S. 507. Thus, the Defense Department established Combat Status Review Tribunals to determine whether persons captured overseas, and detained at the Guantanamo Bay Naval Station, were "enemy combatants."


Detainees denied being enemy combatants and petitioned federal courts individually for writs of habeas corpus. Some cases were dismissed, some were not. During the appeals, Congress passed the amended Detainee Treatment Act (DTA).228 U.S.C.S. 2241. The Act prohibited any court from considering a writ of habeas corpus petition, or "any other action relating to...the detention, transfer, treatment, trial, or conditions of confinement of an alien" detained by the Defense Department at Guantanamo Bay, Cuba. The DTA gave the U.S. Appeals Court for the D.C. Circuit exclusive jurisdiction to review decisions of the Status Review Tribunals. But the Appeals Court could review only whether the standards and procedures set by the Defense Department had been followed and whether their use followed the Constitution and federal law.


The D.C. Court of Appeals concluded that the DTA prohibited any court from considering the detainees' habeas corpus petitions, and that the detainees were not entitled to habeas corpus protection or protections of the Suspension Clause. The Supreme Court accepted review of the consolidated appeals.


The Writ of Habeas Corpus

Habeas Corpus is an extraordinary writ. A writ is a court's written order commanding the addressee to do or not do some act.3Bryan A. Garner. Black's Law Dictionary: New pocket edition. West Group 1996, pg. 669. An "extraordinary" writ means a court exercises unusual or discretionary power in issuing it.4Id. The petition for the extraordinary writ is an independent separate case. Typically, a petition for writ of habeas corpus asks the court to determine the legality of a person's detention.5Id., at 284.

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Copyright © Erik L. Smith.