''Rasul v. Bush'', 542 U.S. 466 (2004), was a

landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly ...

of the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...

in which the Court held that foreign nationals held in the

Guantanamo Bay detention camp The Guantanamo Bay detention camp ( es, Centro de detención de la bahía de Guantánamo) is a United States military prison located within Guantanamo Bay Naval Base, also referred to as Guantánamo, GTMO, and Gitmo (), on the coast of Guant ...

could petition federal courts for writs of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...

'' to review the legality of their detention. The Court's 6–3 judgment on June 28, 2004, reversed a

D.C. Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...

decision which had held that the

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

has no

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Ju ...

to hear any petitions from foreign nationals held in Guantanamo Bay. The lead petitioner, British citizen Shafiq Rasul, was one of the Tipton Three. The U.S. transported the three men to the United Kingdom in March 2004 before the decision was handed down, and the government released them the next day.

Background

Military order

On September 14, 2001, Congress passed the

Authorization for Use of Military Force Against Terrorists The Authorization for Use of Military Force (AUMF) (, ) is a joint resolution of the United States Congress which became law on September 18, 2001, authorizing the use of the United States Armed Forces against those responsible for the September ...

, giving the

President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the Federal government of the United States#Executive branch, executive branch of the Federal gove ...

broad powers to prosecute a

Global War on Terror The war on terror, officially the Global War on Terrorism (GWOT), is an ongoing international counterterrorism military campaign initiated by the United States following the September 11 attacks. The main targets of the campaign are militant ...

in response to the

September 11 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commerc ...

. Secretary of State

Colin Powell Colin Luther Powell ( ; April 5, 1937 – October 18, 2021) was an American politician, statesman, diplomat, and United States Army officer who served as the 65th United States Secretary of State from 2001 to 2005. He was the first African ...

and State Department Legal Advisor

William Howard Taft IV William Howard Taft IV (born September 13, 1945) is an attorney who has served in the United States government under several Republican administrations. He is the son of William Howard Taft III and the great-grandson of President William Howard ...

advised that the President must observe the

Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...

Neal Katyal Neal Kumar Katyal (born March 12, 1970) is an American lawyer and academic. He is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. During the Obama administrati ...

''The Supreme Court, 2005 Term — Comment:'' Hamdan v. Rumsfeld: ''The Legal Academy Goes to Practice''
120 Harv. L. Rev. 65 (2006). Colonel Lawrence Morris proposed holding public hearings modeled on the

Nuremberg trials The Nuremberg trials were held by the Allies against representatives of the defeated Nazi Germany, for plotting and carrying out invasions of other countries, and other crimes, in World War II. Between 1939 and 1945, Nazi Germany invaded ...

. Major General Thomas Romig, the

Judge Advocate General of the United States Army The Judge Advocate General of the United States Army (TJAG) is the senior officer of the Judge Advocate General's Corps of the United States Army. Under Title 10 of the United States Code, the TJAG is appointed by the President of the United State ...

, recommended any new

military tribunals Military justice (also military law) is the legal system (bodies of law and procedure) that governs the conduct of the active-duty personnel of the armed forces of a country. In some nation-states, civil law and military law are distinct bodies ...

be modeled on existing

courts-martial A court-martial or court martial (plural ''courts-martial'' or ''courts martial'', as "martial" is a postpositive adjective) is a military court or a trial conducted in such a court. A court-martial is empowered to determine the guilt of memb ...

. However, Assistant Attorney General for the

Office of Legal Counsel The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies. It drafts legal opinions of the Attorney ...

Jay Bybee Jay Scott Bybee (born October 27, 1953) is an American lawyer and jurist serving as a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and has taug ...

, relying on the

unitary executive theory The unitary executive theory is a theory of United States constitutional law which holds that the President of the United States possesses the power to control the entire federal executive branch. The doctrine is rooted in Article Two of the Un ...

developed by Deputy Assistant Attorney General

John Yoo John Choon Yoo (; born July 10, 1967) is a Korean-born American legal scholar and former government official who serves as the Emanuel S. Heller Professor of Law at the University of California, Berkeley. Yoo became known for his legal opinions ...

, advised the President in a series of memos that he could hold

enemy combatants Enemy combatant is a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case ...

abroad, indefinitely, without Congressional oversight, and free from

judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incom ...

. On November 13, 2001, President

George W. Bush George Walker Bush (born July 6, 1946) is an American politician who served as the 43rd president of the United States from 2001 to 2009. A member of the Republican Party, Bush family, and son of the 41st president George H. W. Bush, he ...

signed a military order titled the

Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism On November 13, 2001 U.S. President George W. Bush issued a Military Order titled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.United States invasion of Afghanistan In late 2001, the United States and its close allies invaded Afghanistan and toppled the Taliban government. The invasion's aims were to dismantle al-Qaeda, which had executed the September 11 attacks, and to deny it a safe base of operations ...

. The US Military transferred Rasul and Asif Iqbal, both British citizens, and

David Hicks David Matthew Hicks (born 7 August 1975) is an Australian who attended al-Qaeda's Al Farouq training camp in Afghanistan, and met with Osama bin Laden during 2001. He was then detained by the United States in Guantanamo Bay detention camp ...

, an Australian citizen, to Guantanamo Bay in December 2001. Each denied voluntarily joining any terrorist forces. As noted by the District Court, they did not deny having fought for the

Taliban The Taliban (; ps, طالبان, ṭālibān, lit=students or 'seekers'), which also refers to itself by its state name, the Islamic Emirate of Afghanistan, is a Deobandi Islamic fundamentalist, militant Islamist, jihadist, and Pas ...

, but claimed that if they ''did'' take up arms, it was only when being attacked and in self-defense. Rasul and Iqbal say they were with the Taliban because they were taken captive. Hicks is silent on the matter in court filings, but his father, in filing the brief, said that he believed that his son had joined the Taliban forces. The twelve

Kuwait Kuwait (; ar, الكويت ', or ), officially the State of Kuwait ( ar, دولة الكويت '), is a country in Western Asia. It is situated in the northern edge of Eastern Arabia at the tip of the Persian Gulf, bordering Iraq to the no ...

is, combined in '' Al Odah v. United States,'' claimed that they were in Pakistan and Afghanistan giving humanitarian aid. They were seized by villagers seeking bounties and "sold" to the United States (US) forces. The US transferred them to Guantanamo Bay starting in January 2002.

Mamdouh Habib Mamdouh Habib (born 3 June 1955) is an Egyptian and Australian citizen with dual nationality, best known for having been held for more than three years by the United States as an enemy combatant, by both the Central Intelligence Agency (CIA) and ...

, the plaintiff in ''

Habib v. Bush Mamdouh Habib (born 3 June 1955) is an Egyptian and Australian citizen with dual nationality, best known for having been held for more than three years by the United States as an enemy combatant, by both the Central Intelligence Agency (CIA) and ...

,'' was arrested by Pakistani authorities on October 5, 2001, two days before the fighting began.

Procedural history

Court petitions

The

Center for Constitutional Rights The Center for Constitutional RightsThe Center for Constitutional Rights
(CCR) is a

(CCR) was the first organization to file two petitions, ''Rasul v. Bush'' and ''Habib v. Bush'', challenging the U.S. government's practice of holding foreign nationals in detention indefinitely who were captured in Afghanistan during the war against the

regime and

al-Qaida Al-Qaeda (; , ) is an Islamic extremist organization composed of Salafist jihadists. Its members are mostly composed of Arabs, but also include other peoples. Al-Qaeda has mounted attacks on civilian and military targets in various countr ...

. The government had designated the detainees as

and did not allow them access to counsel, the right to a trial, or knowledge of the charges against them. On February 19, 2002, Guantanamo detainee Shafiq Rasul, a British citizen, petitioned in federal court for a writ of ''

'' to review the legality of his detention. Guantanamo detainee

, an Australian citizen, also filed a petition. These cases were each filed in the

United States District Court for the District of Columbia The United States District Court for the District of Columbia (in case citations, D.D.C.) is a United States district court, federal district court in the District of Columbia. It also occasionally handles (jointly with the United States Dist ...

and the court decided them together, consolidating them under ''Rasul v. Bush''. Each of the filings alleged that the government had not allowed the detainee to speak at all to friends, family or lawyers, and had not given him any hearing whatsoever on the question of whether he was an enemy combatant in the war.

U.S. District Court

U.S. District Judge

Colleen Kollar-Kotelly Colleen Constance Kollar-Kotelly (born April 17, 1943) is an American lawyer serving as a Senior United States district judge of the United States District Court for the District of Columbia and was previously presiding judge of the Foreign Int ...

denied the detainees' petitions on July 30, 2002, finding that aliens in Cuba had no access to U.S. courts. Citing ''

Johnson v. Eisentrager ''Johnson v. Eisentrager'', 339 U.S. 763 (1950), was a major decision of the US Supreme Court, where it decided that US courts had no jurisdiction over German war criminals held in a US-administered prison in Germany. The prisoners had at no t ...

'', , in which the U.S. Supreme Court ruled that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison, the District Court ruled that U.S. courts have jurisdiction only in a territory where the U.S. has

sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...

. Because the lease with Cuba regarding Guantanamo Bay stated that Cuba technically has "ultimate sovereignty", the court held Guantanamo Bay could not be considered a sovereign territory of the United States and therefore foreign nationals could not be given a trial in the U.S. The plaintiffs pointed out that the U.S. has all effective powers in the area.

U.S. Court of Appeals

In '' Al Odah v. United States'' a panel of the

United States Court of Appeals for the District of Columbia Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...

including Judge A. Raymond Randolph, Judge

Merrick Garland Merrick Brian Garland (born November 13, 1952) is an American lawyer and jurist serving since March 2021 as the 86th United States attorney general. He previously served as a U.S. circuit judge of the U.S. Court of Appeals for the District of C ...

, and Judge Stephen F. Williams affirmed on March 11, 2003.

Supreme Court

The

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...

, over the Government's objections, agreed in November 2003 to hear the cases of the Guantánamo detainees, namely ''Rasul v. Bush'', which was consolidated with ''al Odah v. Bush'' (the latter represented twelve Kuwaiti men).

Release of Rasul and Iqbal

On March 9, 2004, two years after they were first detained, the U.S. released Rasul and Iqbal to the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...

with no charges filed, along with three other British citizen detainees. The British government had been pressing the United States for the return of its citizens and legal residents. The next day, the UK government released all five men without charge.

Oral arguments

One-hour of oral arguments were heard on April 20, where former-Circuit Chief Judge John Joseph Gibbons appeared for the detainees and

Theodore Olson Theodore Bevry Olson (born September 11, 1940) is an American lawyer, practicing at the Washington, D.C., office of Gibson, Dunn & Crutcher. Olson served as United States Assistant Attorney General of the Office of Legal Counsel (1981–19 ...

, the

Solicitor General of the United States The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represen ...

, personally appeared for the Government. During the oral arguments the following points came up: * Many of the Justices' questions indicated a belief that ''Johnson v. Eisentrager'' was immaterial to the jurisdictional question at hand, while the government argued that it was material. Justice Stevens noted that the ''Ahrens v. Clark'' decision, the basis of the Eisentrager decision, had since been largely reversed in Braden (1973), and thus relevant parts of Eisentrager may no longer apply. *

Justice Souter David Hackett Souter ( ; born September 17, 1939) is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1990 until his retirement in 2009. Appointed by President George H. W. Bush to fill the seat ...

noted that the ability of a U.S. citizen to get a trial may necessarily imply that the court has jurisdiction in that geographic area, since jurisdiction is largely a geographic and sovereignty matter. Since the government had said it would not challenge 'habeas corpus' by a U.S. citizen in Guantanamo Bay, in '' Hamdi v. Rumsfeld'' (2004), this could establish jurisdiction at the base. * The court had concern that there is a gray area where certain types of cases would fall through the cracks, because only the U.S. military appeared to have jurisdiction. On the other hand,

Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...

noted, it may be possible, and better, for Congress to remedy that situation, as they have deliberative powers the court does not.

Quotes

regarding the purpose of jurisdiction:

The Constitution requires jurisdiction—the Constitution requires that an American citizen who has the protection of the Constitution have some manner of vindicating his rights under the Constitution.

Justice Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and repl ...

on whether to deny jurisdiction to citizens outside the U.S.

So what I'm thinking now, assuming that it's very hard to interpret Eisentrager, is that if we go with you, it has a virtue of clarity. There is a clear rule. Not a citizen outside the United States; you don't get your foot in the door. But against you is that same fact. It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.

Justice Scalia on whether the courts or Congress are better suited to rewrite laws:

Can we hold hearings to determine the problems that are bothering you? I mean, we have to take your word for what the problems are. We can't call witnesses and see what the real problems are, can we, in creating this new, substantive rule that we're going to let the courts create? Congress could do all that, though, couldn't it? ...

If it wanted to change the habeas statute, it could make all sorts of refined modifications about issues that we know nothing whatever about because we have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts.

Opinion of the Court

On June 28, 2004, the

decided against the Government. Justice

John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-olde ...

, joined by Justices

Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...

David Souter David Hackett Souter ( ; born September 17, 1939) is an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1990 until his retirement in 2009. Appointed by President George H. W. Bush to fill the seat ...

Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by President ...

, and

Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and re ...

, held that the detainees had a

statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...

right to petition federal courts for habeas review. That same day, the Supreme Court ruled against the Government in '' Hamdi v. Rumsfeld''. Justice

wrote the four justice

plurality opinion A plurality opinion is in certain legal systems the opinion from one or more judges or justices of an appellate court which provides the rationale for the disposition of an appeal when no single opinion received the support of a majority of th ...

finding that an American citizen detained in Guantanamo had a constitutional right to petition federal courts for habeas review under the

Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...

. Quoting

Lord Mansfield William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland, before moving to L ...

and

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory (British political party), Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Bo ...

, Justice Stevens reasoned that

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

courts exercise habeas jurisdiction over all dominions under the sovereign's control.

Justice Kennedy's concurrence in judgment

Justice

Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Preside ...

concurred only in the judgment. While refusing to join the majority's opinion's view of "automatic statutory authority", Justice Kennedy felt federal-court jurisdiction is permitted, "in light of the status of Guantanamo Bay and the indefinite pretrial detention of detainees".

Justice Scalia's dissent

Justice

Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...

, joined by Chief Justice

William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...

, and Justice

Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 19 ...

, filed a

dissenting opinion A dissenting opinion (or dissent) is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Dissenting opinions are no ...

. Attacking the majority's

statutory interpretation Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward mean ...

Justice Scalia wrote, "for this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort."

Subsequent developments

The United States Government announced that it planned to charge Hicks and Habib before a military commission. Habib was released in January 2005, after the ''

Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large na ...

'' reported his

extraordinary rendition Extraordinary rendition is a euphemism for state-sponsored forcible abduction in another jurisdiction and transfer to a third state. The phrase usually refers to a United States-led program used during the War on Terror, which had the purpose ...

from

Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...

Egypt Egypt ( ar, مصر , ), officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Med ...

by the

CIA The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...

soon after his arrest. He was held and interrogated under torture in Egypt for five months before being returned to Pakistan, and then transferred to military custody and Guantanamo Bay."Australians saw Habib tortured, says officer"
'' Sydney Morning Herald'', 13 February 2011, accessed 25 January 2011. Quote: "DAMNING evidence from an Egyptian intelligence officer that names an Australian official who witnessed the torture of Sydney man Mamdouh Habib in gypthas been revealed as the trigger for a hushed-up government payout to Mr Habib and a high-level investigation."

Justice Rutledge's influence

Directly after law school,

worked as a

law clerk A law clerk or a judicial clerk is a person, generally someone who provides direct counsel and assistance to a lawyer or judge by researching issues and drafting legal opinions for cases before the court. Judicial clerks often play significant ...

to Justice

Wiley Blount Rutledge Wiley Blount Rutledge Jr. (July 20, 1894 – September 10, 1949) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1943 to 1949. The ninth and final justice appointed by President Frankli ...

.Joseph P. Thai, ''The Law Clerk Who Wrote'' Rasul v. Bush'': John Paul Stevens’s Influence from World War II to the War on Terror''
92 Va. L. Rev. 501 (2006). In ''

Ahrens v. Clark ''Ahrens v. Clark'', 335 U.S. 188 (1948), was a United States Supreme Court case that denied a federal district court jurisdiction to issue a writ of ''habeas corpus'' if the person detained is not within the territorial jurisdiction of the court ...

'' (1948), the Court held that no federal court had been given

territorial jurisdiction A jurisdiction is an area with a set of laws under the control of a system of courts or government entity which are different from neighbouring areas. Each state in a federation such as Australia, Germany and the United States forms a separate ...

over

Ellis Island Ellis Island is a federally owned island in New York Harbor, situated within the U.S. states of New York and New Jersey, that was the busiest immigrant inspection and processing station in the United States. From 1892 to 1954, nearly 12 m ...

, provoking Justice Rutledge to file a dissent Stevens helped draft. In 1956, Stevens wrote a book chapter where he quoted Justice Rutledge's dissent from ''In re Tomoyuki Yamashita'' (1946): "It is not too early, it is never too early, for the nation to steadfastly follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, this is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late." Justice Stevens quoted the ''Ahrens'' dissent approvingly in ''Rasul'', fifty-six years after he had drafted it as a clerk.

''Hamdan v. Rumsfeld'' (2006)

Deputy Defense Secretary

Paul Wolfowitz Paul Dundes Wolfowitz (born December 22, 1943) is an American political scientist and diplomat who served as the 10th President of the World Bank, U.S. Deputy Secretary of Defense, U.S. Ambassador to Indonesia, and former dean of Johns Hopki ...

responded by creating "

Combatant Status Review Tribunal The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were esta ...

s" to determine if detainees were unlawful combatants. Detainee's habeas petitions to the

were consolidated into two cases. In one, Judge Richard J. Leon rejected the detainees petition because they "have no cognizable

Constitutional rights A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...

" on January 19, 2005. In the other, Judge

Joyce Hens Green Joyce Hens Green (born November 13, 1928) is a Senior United States district judge of the United States District Court for the District of Columbia. Green was nominated by President Jimmy Carter on March 6, 1979, to a seat vacated by Howard F. C ...

granted the detainees petition, finding the CSRTs were insufficient to protect the detainees rights under the

Geneva Convention upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conv ...

and the

Fifth Amendment to the United States Constitution The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amend ...

on January 31, 2005. On July 15, 2005, a panel of the D.C. Circuit made of Judge A. Raymond Randolph then-Circuit Judge

John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...

and Judge Stephen F. Williams vacated the lower rulings and threw out the detainees' petitions. On November 7, 2005, the Supreme Court agreed to review that judgment. On December 30, 2005, Congress responded by passing the

Detainee Treatment Act The Detainee Treatment Act of 2005 (DTA) is an Act of the United States Congress that was signed into law by President George W. Bush on 30 December 2005. Offered as an amendment to a supplemental defense spending bill, it contains provisions re ...

, which changed the statute to explicitly strip detainees of any right to petition courts for habeas review. On June 29, 2006, the Supreme Court decided against the Government in ''

Hamdan v. Rumsfeld ''Hamdan v. Rumsfeld'', 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Mili ...

''. Justice Stevens, writing for a five justice majority, found that courts had jurisdiction to hear those detainees' petitions which had been filed before Congress enacted the DTA and that the CSRTs violated the

standards enacted in the

Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ, 10 U.S.C. §§ 801–946 is the foundation of military law in the United States. It was established by the United States Congress in accordance with the authority given by the United States Constituti ...

''Boumediene v. Bush'' (2008)

Congress responded by passing the

Military Commissions Act of 2006 The Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of ...

, which gave statutory authorization to the CSRTs and was explicit in retroactively stripping detainees of any right to petition courts for habeas review. On February 20, 2007, D.C. Circuit Judge A. Raymond Randolph, joined by Judge David B. Sentelle upheld the Act and dismissed the detainees' petitions, over the dissent of Judge Judith W. Rogers. On June 12, 2008, the U.S. Supreme Court decided against the Government in ''Boumediene v. Bush''. Justice

, writing for a five justice majority, held that the detainees had a right to petition federal courts for writs of habeas corpus under the United States Constitution. Justice

strongly dissented, writing that the Court's decision, "will almost certainly cause more Americans to be killed".

References

External links

*
''Rasul v. Bush'' and other cases
Center for Constitutional Rights website
"Supreme Court Decision goes against Bush"
CDI
Briefs and papers filed for ''Rasul v. Bush''

information about the filing of the brief
Center for Constitutional Rights

commentary, Duke University School of Law {{USGWOTlaw United States Supreme Court cases United States habeas corpus case law 2004 in United States case law Guantanamo captives' habeas corpus petitions American Civil Liberties Union litigation United States Supreme Court cases of the Rehnquist Court