Suspension Clause

Boumediene v. Bush; Al Odah v. United States

Issues

Does the Military Commissions Act of 2006 ("MCA") preclude federal jurisdiction over all habeas corpus petitions filed by non-citizen detainees at Guantanamo Bay, and if so, does the MCA violate the Suspension Clause of the Constitution, which states that habeas cannot be suspended except in times of rebellion or invasion?

Regardless of whether the detainees have rights under the Suspension Clause or the Constitution, are the Combatant Status Review Tribunals and D.C. Circuit Court review (as established by the Detainee Treatment Act) an adequate and effective substitute for the constitutional right to habeas corpus?

 

Boumediene v. Bush and Al Odah v. United States come to the Supreme Court as the latest chapter in the ongoing battle over the scope of rights that detainees at Guantanamo Bay have.�� In early 2002, six humanitarian workers were arrested in Bosnia and transported to Guantanamo Bay.� They, along with other non-citizen detainees, seek to exercise the constitutional right of habeas corpus to appear before a federal court to contest their detention. Currently, a military tribunal determines whether a detainee is properly detained at Guantanamo as an "enemy combatant." The D.C. Circuit found that the Military Commissions Act ("MCA"), which precludes federal jurisdiction over the detainees' habeas claims, applies to the detainees, and that detainees are not entitled to the constitutional writ of habeas corpus because they are "without presence or property within the U.S."

On appeal before the Supreme Court are several important constitutional issues, including whether the MCA's suspension of habeas corpus for non-citizen Guantanamo detainees is consistent with the Constitution.� Additionally, the Court will likely examine whether Combatant Status Review Tribunals and D.C. Circuit review constitute an adequate substitute for habeas corpus.� Finally, the Court may delimit the scope of constitutional rights possessed by non-citizen Guantanamo detainees. The Court's decision will significantly impact both detainee rights and limits to the military's wartime powers, as well as clarify the judiciary's position in the system of checks and balances with the executive and legislative branches.

Questions as Framed for the Court by the Parties

Boumediene v. Bush:

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

2. Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah v. United States:

1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court's ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners' right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts' jurisdiction over petitioners' pending habeas cases, thereby creating serious constitutional issues?

These consolidated cases involve federal court jurisdiction over petitions for writs of habeas corpus filed by foreign nationals detained at the United States Naval Station in Guantanamo Bay. The writ of habeas corpus allows a detained person to challenge the lawfulness of their detention in court.

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Acknowledgments

The authors would like to thank Professor Sital Kalantry and Professor David Wippman for their insights into this case.

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Department of Homeland Security v. Thuraissigiam

Issues

Under the Suspension Clause, is 8 U.S.C. § 1252(e)(2) constitutional as applied to noncitizens who have secretly entered the United States?

This case asks the Supreme Court to decide whether, under the Suspension Clause, 8 U.S.C. § 1252(e)(2) is constitutional as applied to noncitizens who have secretly entered the United States. Petitioner Department of Homeland Security argues that noncitizens entering clandestinely, treated properly as seeking initial admission to the United States, are entitled to no due process protections; that such noncitizens are not entitled to habeas corpus under the Suspension Clause; and that even if the Suspension Clause does apply, the statute’s provision of administrative review and limited judicial review are sufficient. Respondent Thuraissigiam counters that notwithstanding the Government’s misreading of applicable law, clandestinely entering noncitizens within the United States are entitled to due process under the Fifth Amendment; that the Suspension Clause does apply to individuals in immigration proceedings; and that the statute provides an inadequate substitute for habeas corpus. This case has implications for states’ resource spending, revenue collection, and citizen welfare. Additionally, this case’s outcome could impact federal courts’ work load, depending on whether federal courts must open up to a new class of alien-petitioners.

Questions as Framed for the Court by the Parties

Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.

Vijayakumar Thuraissigiam, a Sri Lanka native, is of the Tamil ethnic minority and backed a Tamil political candidate. Thuraissigiam v. USDHS at 11–12. In June 2016, Thuraissigiam fled Sri Lanka to Mexico. Id. at 11. In February 2017, he entered the United States through the Mexico-California border and was arrested by U.S.

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