Boumediene V. Bush: an Unconstitutional Suspension of the Writ of Habeas Corpus

The United States is a free country that was forged out of the tyrannical English Monarchy. Thomas Jefferson wrote that “All men are created equal, that they are endowed by their Creator with certain unalienable rights” (Declaration of Independence). Those rights are represented in the United States Constitution which is the foundation which strongly upholds American ideals and beliefs.

Although the Constitution does not always apply to foreigners, Boumediene and the other detainees at Guantanamo Bay deserve habeas corpus rights because it is a fundamental principle that applies to everyone, regardless of state or nationality. The final decision that was made by the US Supreme Court was the correct one because they realized that Guantanamo is under US jurisdiction, the DTA provides an inadequate substitution to habeas corpus, and that MCA does violate the Suspension Clause of the Constitution.

In 2008, Boumediene, a captive at Guantanamo Bay had his habeas corpus rights denied by the D. C. District Court and the Appellate Court based on bills passed by Congress. The founding fathers specifically state in Article 1, Section 9 that congress shall not pass any bill that restricts habeas corpus rights. The detainees at Guantanamo Bay live in cells for twenty-three hours of the day. They are in constant fear of being abused and tortured, mentally and physically by the guards and many have been at the naval base for over five years. Among all the detainees, none have been given access to any type of tribunal board to hear what their being convicted of.

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The biggest problem is that all of them have been denied habeas corpus rights which effectively allows the Executive Branch of the US government to hold them indefinitely. The United States has adopted many of England’s traditions. One of which are habeas corpus rights derived from the Magna Carta signed in 1215. However, when the case reached the District Court, the Bush administration plead their case stating that Guantanamo Bay was not on Sovereign US soil, therefore, the protection of habeas corpus could not be granted to the etainees. However, looking back in history to the English, they were in a similar predicament.

India was officially a part of the British Empire in 1858, however, the British had occupied the country since the 1700’s with a heavy military presence. Despite India not becoming an official part of the British Empire, the Writ of Habeas Corpus was being incorporated into their government since the dawn of the nineteenth century. The Indian government were allowed to hear cases of habeas corpus since 1773.

But, it was not until 1775 when it was actually first used by chief justice, Sir Elijah Impey to question his detention by Governor-General Warren Hastings at the Calcutta Supreme Court (A. G Noorani). The British allowed Indian prisoners the right of habeas corpus even though they did not have sovereignty of the country. This example in history sets precedent that if a country occupies a territory with a heavy military presence, then the right of habeas corpus shall be extended as well.

The Supreme Court agrees because they voted in a 6-3 majority in the case, Rasul v. Bush. Supreme Court Justice Stevens issued his concurring opinion which stated that the detainees “have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing…they have been imprisoned in territory over which the United States exercise exclusive jurisdiction and control” (Stevens, Opinion of the Court, 542 U. S. ). The Supreme Court ultimately decided that since the US government maintained a strong military presence and holds an indefinite lease over the area, it therefore had complete jurisdiction and control over the base in Cuba.

Because the US government had complete jurisdiction over the base, ultimate sovereignty, which is granted to Cuba, holds no weight in the argument. This essentially makes Guantanamo Bay part of the US and not Cuba, which means Sovereign US laws should apply there, the same as it would to any US State or territory. The respondents stated to the Appeals Court that detainees are given a fair alternative to habeas corpus rights. However, these alternatives do not protect the detainee as fully as habeas corpus would.

The respondents stated that the Combat Status Review Tribunals (CSRT), which were established by the Defense Department, were put into place for the sole purpose of hearing the cases of the detainees. However, there are many flaws in having such a system determine the legality of one’s detention. The Supreme Court recognizes that the CSRT process for hearing cases puts many “constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant” (Boumediene v. Bush, 476F. 3d981).

Some flaws the court points out is that the CSRT assumes that the detainees are guilty before the trial has even started and it is all up to the detainee to prove that they are in fact, not enemy combatants. This goes against the typical US court proceedings when all suspects are presumed innocent until proven otherwise. The bias shown by the members of the CSRT puts the detainees at a disadvantage. Furthermore, while many of the detainees have a limited knowledge of English, they are not given the specifics as to what crimes they are being charged with because the information may be classified.

Additionally, with no textual evidence, the detainees often go into the CSRT board empty handed and without legal representation. Not only do the proceedings of the CSRT seem unfair, it also seems to be designed to intentionally make it difficult for detainees to secure their freedom. Coming back to the respondents original claim, if the CSRT is essentially a substitute for habeas corpus, why not just use habeas corpus? Habeas corpus has been around since 1215 and has survived in the US Government for over 300 years for a reason… it is an effective way for people to question the legality of their detention by the government.

The Military Commissions Act (MCA) of 2006 was an amendment to the Detainee Treatment Act (DTA) which would have disallowed Federal Courts to hear writs of habeas corpus from the detainees at Guantanamo Bay. The US Supreme Court decided that because the DTA was an inadequate substitution for habeas corpus, then the MCA cannot strip away Federal courts jurisdiction to hear habeas corpus cases. The reason behind this is that it would then be an unconstitutional suspension of the writ of habeas corpus because it violates the Suspension Clause.

At the Appellate Court, the respondents (Bush) stated that the Suspension Clause is an ‘individual’ right granted only to US citizens. However, while looking at the text of the Suspension Clause in context, it states: “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” (US Constitution, art 1, sec 9). The Supreme Court counters the respondent’s argument by stating that the Suspension Clause is meant to be a limitation to Congresses powers and not something that applies to individuals.

Nevertheless, nowhere in that phrase do the words ‘individual’ or ‘citizen’ ever show up. Therefore, it cannot be assumed that the Suspension Clause only applies to US citizens and that it is not a universal right to anyone being held under US jurisdiction. Additionally, the founding fathers placed the Suspension Clause in Article 1, Section 9 in the Constitution. This is important because if the founding fathers specifically intended to apply the Suspension Clause to US citizens only, then they would have placed it in the Bill of Rights which are specifically reserved for the people to protect them against the government.

Furthermore, the rest of the clauses in Article 1, Section 9 specifically state what types of activities that the Legislative Branch cannot do. Hence, the Suspension Clause, because of its placement, was intended to be a limitation upon the abuse of power by the Legislative Branch. Lastly, the principle of separation of powers came from the idea that each branch would be able to check one another. The MCA effectively stops the Judiciary Branch to do its job therefore is also unconstitutional.

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