Boumediene v. Bush (Amicus Brief)

In August 2007, the Brennan Center filed an amicus brief in the U.S. Supreme Court on behalf of habeas corpus scholars in the United States and in the United Kingdom, explaining why habeas corpus rights must be granted to individuals held in Guantánamo Bay. On June 12, 2008, the Supreme Court ruled in a 5–4 decision that Guantánamo Bay detainees have a right to habeas corpus.

In Brief – Pressured by the United States government, Bosnian police arrested six Bosnian residents in Sarajevo, October 2001, after the Bosnian Supreme Court had ordered their release. The prisoners were then secretly rendered to the detention center at Guantanamo Bay where they have been held without charge or due process for seven years as “enemy combatants.” In 2004, counsel for the detainees filed a lawsuit challenging their unlawful imprisonment.

Similarly, Khalid Abdullah Fahad Al Odah, a Kuwaiti national captured in late 2001, also sued for his right to due process. This case was first heard by the Supreme Court in June 2004, where it was decided that he and other detainees have the right to file habeas challenges.

Question Presented – Does the Executive have the right to imprison individuals without habeas corpus in territory under long-term, complete and exclusive U.S. jurisdiction and control? This case challenges the proposition that the Executive can establish prisons beyond the law merely by declaring individuals “enemy combatants”.

Procedural History – The Supreme Court issued its opinion on June 12, 2008.

Additional Detail – In December 2007, the Supreme Court heard oral argument in Boumediene v. Bush and Al Odah v. United States, the first ever Supreme Court challenge to the Military Commissions Act of 2006 and its effort to strip habeas corpus for Guantanamo detainees. The Brennan Center for Justice’s Jonathan Hafetz, with the law firm Mayer Brown, co-coordinated the filing of more than 20 friend-of-the-court briefs. Mr. Hafetz, who attended the argument, also co-authored an amicus brief on habeas corpus on behalf of the leading legal historians from the United States and England.

Habeas corpus, which protects individuals against the arbitrary and unlawful exercise of state power, has guaranteed government detainees the right to question the grounds for their detention since America was founded. It serves as both the preeminent safeguard of personal liberty and a vital check against illegal executive action by demanding the government provide a lawful basis for a person’s confinement. But, in 2005, and again in 2006, Congress sought to deprive foreign nationals held at Guantánamo and other prisons outside the mainland United States of the right to challenge their detention by habeas corpus. The elimination of habeas corpus is not temporary but a permanent attempt to deprive individuals of this fundamental constitutional right forever. 

Learn more about habeas corpus in Jonathan Hafetz’s white paper “Ten Things You Should Know About Habeas Corpus.”