Supreme Court affirms habeas corpus for Guantanamo detainees.

• Author: Crook, John R.
• Position: Contemporary Practice of the United States Relating to International Law

In June 2008, the U.S. Supreme Court ruled by a vote of 5 to 4 in Boumediene v. Bush (1) that alien detainees held at the U.S. naval base at Guantanamo Bay, Cuba, are entitled to the right of habeas corpus under the U.S. Constitution and that the procedures established by the Detainee Treatment Act of 2005 (2) are not a sufficient substitute. The Court did not address the substantive legal standards to be applied in considering such petitions. Writing for the majority (Justices Kennedy, Breyer, Ginsburg, Souter, and Stevens), Justice Kennedy observed:

We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. (3) The decision and dissents delve into the original intentions of the U.S. Constitution's framers and the reach of the Constitution to U.S. government activities outside U.S. borders. The case will be examined in greater detail elsewhere (as an International Decision) in this issue of the Journal and will not be discussed in detail here. For convenience, excerpts from the Court's syllabus of the majority opinion follow (citations and cross-references omitted):

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause's protections because they have been designated as enemy combatants or because of their presence at Guantanamo.

(a) A brief account of the writ's history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee...