Rasul v. Bush
Habeas Available to the Guantanamo Detainees
In early 2002, Rasul and Al Odah were captured by the United States military in Afghanistan or Pakistan during the hostilities between United States and Taliban forces. The United States military transferred the prisoners to Guantanamo Bay Naval Base, Cuba, where they remained for over two years. Upon their detention, the prisoners, through relatives acting as their next of friends, filed petitions for writs of habeas corpus under the general federal habeas corpus statute, 28 U.S.C. §§ 2241-2243. Al Odah and eleven other Kuwaiti prisoners also asserted causes of action under the Administrative Procedure Act and the Alien Tort Statute.
The government, relying on Johnsen v. Eisentrager, argued that the United States courts lack jurisdiction over aliens captured abroad and detained at Guantanamo. In Eisentrager, the Supreme Court held that federal courts could not entertain a habeas petition filed on behalf of twenty-one German citizens who had been captured during World War II, tried in military commissions overseas, and incarcerated in a United States military prison in Germany. Eisentrager held that “nothing . . . in [the United States’] statutes” provided prisoners, captured and detained abroad, a right to habeas review.” Additionally, the Court determined that the Constitution did not provide a prisoner the right to petition for habeas corpus when he “(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”
Both the District Court and the Court of Appeals rejected the habeas petitions of Rasul and Al Odah, finding that Eisentrager governed the outcome and compelled dismissal. The detainees petitioned for certiorari, and in a decision written by Justice Stevens, the Supreme Court reversed.
Many court observers had anticipated that Rasul would be the occasion for the Court to clarify the constitutional holding in Eisentrager, which is one of a handful of World War II precedents which the government has relied on in developing its legal positions relating to the war on terrorism. The unique status of the Guantanamo Navy Base also made it possible that Eisentrager might be found inapplicable: Eisentrager arguably relied on the location of detention being outside the the sovereign jurisdiction of the United States, and in Rasul the detainees argued that detention at the Naval Base was effectively identical to detention inside the United States (the United States possesses and occupies Guantanamo pursuant to a lease with Cuba, and the Ninth Circuit Court of Appealst had decided a case in favor of another group of detainees on this basis).
The opposing briefs in the case had engaged in vigorous argument over which of the elements of Eisentrager facts were essential for its holding. The government’s position was that Eisentrager stood for the proposition that “U.S. courts lacked jurisdiction to consider the habeas petition [from] aliens who were seized abroad and detained outside the sovereign territory of the United States.” Petitioners claimed that each of six factual elements were essential to Eisentrager, and that the status of Guantanamo provided an additional basis for refusing to apply that precedent in Rasul.
Those anticipating some clarification of the essential holding in Eisentrager were ultimately disappointed, because Justice Stevens found a close reading of the habeas statute sufficient to decide the matter. In Braden v. 30th Judicial District Court, the Court had concluded that a prisoner’s presence within the jurisdiction was not a prerequisite of the habeas statute. Rather, jurisdiction could lie under 28 U.S.C. § 2241 “as long as the custodian can be reached by service of process.” Following this interpretation of § 2441, Rasul reached the straightforward conclusion that the statute permitted the Guantanamo detainees to file their habeas petition: "Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court's jurisdiction over petitioners' custodians. Section 2241, by its terms, requires nothing more."
This statement in Rasul appears late in the opinion, and is written without qualification. Nonetheless, it may be significantly qualified by the discussion of the presumption against extraterritoriality in Part IV of the opinion. The government had advanced the presumption against extraterritorial application of federal law as a reason that statutory habeas was not available to petitioners. See, e.g., Sale v. Haitian Centers Council, Inc., (“Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested.”) To this, Justice Stevens replied that "[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within the territorial jurisdiction of the United States." Because the United States exercised “complete jurisdiction and control” over Guantanamo it was within the territorial jurisdiction of the United States, whether or not the US exercised sovereignty over it.
Part IV of the opinion suggests that the presumption against extraterritorial application of the habeas status will apply to detainees being held in locations that lack the unique status of Guantanamo and thus are not within the territorial jurisdiction of the Untied States. If so, then the unique status of the Naval Base at Guantanamo will have proven to be important to the outcome, although not because it provided a way to distinguish Eisentrager’s constitutional ruling.
Even though it did not reach the constitutional holding of Eisentrager, Rasul did discuss Eisentrager in dicta that evidently disagrees with the government’s position. According to the Court, “Eisentrager made quite clear that all six of the facts critical to the disposition were relevant . . . to the question of the prisoners’ constitutional entitlement to habeas corpus.” Although dicta, this passage may well be revisited in future litigation, should other habeas cases come to Court on facts that make statutory habeas unavailable to the detainee.
In briefing Rasul, the government continued its practice of advancing constitutional arguments based on a strong view of the President’s exclusive authorities. In this case, as in Padilla and Hamdi, the textual foundation for these arguments was the commander-in-chief power. (In Cheney, the argument that exclusive authority was textually committed to the President was based on the Opinion Clause and the Recommendations Clause.) Here, the government had argued that “exercising jurisdiction over habeas actions filed on behalf of the Guantanamo detainees would directly interfere with the Executive’s conduct of the military campaign against al Qaeda and its supporters.” The government further noted “the detention of captured combatants . . . falls squarely within the President’s authority as Commander in Chief.” Justice Stevens apparently found these arguments to be unconvincing, as they are not even addressed in the opinion for the Court.
This commentary was written by Josh Stowell, Duke Law School ‘06, and Chris Schroeder, director of the Program in Public Law.
