Habeas Corpus

Author:International Law Group

In Rasul v. Bush, the U.S. Supreme Court rules that 28 U.S.C. Section 2241 confers jurisdiction on district court to hear petitioners' habeas corpus challenges to legality of their indefinite incommunicado detentions at Guantanamo Bay Naval Base


Congress passed a joint resolution Authorization for Use of Military Force (AUMF). It authorized the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks. Accordingly, the President sent armed forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had been supporting it.

The Petitioners here are 2 Australian and 12 Kuwaiti citizens captured in Afghanistan and held incommunicado at the Guantanamo Naval Base since early 2002.

The Base encompasses 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the Agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas]," while "the Republic of Cuba consents that during the period of the occupation by the United States ... the United States shall exercise complete jurisdiction and control over and within said areas."

Their relatives filed various actions in the U.S. District Court for the District of Columbia, challenging the legality of the detentions. The District Court dismissed them under Johnson v. Eisentrager, 339 U.S. 763 (1950). It saw them as habeas corpus petitions under 28 U.S.C. Section 2241 by aliens detained outside the sovereign territory of the U.S.

The U.S. Court of Appeals for the District of Columbia Circuit affirmed, and the U.S. Supreme Court granted certiorari. The precise issue taken up by the Supreme Court is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the U.S. exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty." The Court's answer is affirmative.

The Court begins its analysis with Johnson v. Eisentrager. It held that a federal district court lacked habeas corpus jurisdiction over German citizens captured by U.S. forces in China. A military commission convicted them and the Allies imprisoned them in occupied Germany.

It then, however, distinguishes the present case from Eisentrager. Here, the "detainees" are not nationals of a country at war with the U.S.; they deny...

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