Articles of War: Response to the Attacks of September 11, 2001.

In response to the September 11, 2001, terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,”247 which provided that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” During a military action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an “enemy combatant” for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.248 However, the Court did find that the government may not detain the petitioner indefinitely for purposes of interrogation, and must afford him the opportunity to offer evidence that he is not an enemy combatant.249

In Rasul v. Bush,250 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.251 In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States,252 had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control.253 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.254

In response to Rasul, Congress amended the habeas statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional.255 This amendment was challenged in Boumediene v. Bush,256 as a violation of the Suspension Clause.257 Although the historical record did not contain significant common-law applications of the writ to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case.258 Emphasizing a “functional” approach to the issue,259 the Court considered (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and detention took place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous case law, noting that the instant detainees disputed their enemy status, that their ability to dispute their status had been limited, that they were held in a location (Guantanamo Bay, Cuba) under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with the government’s military mission. Thus, the Court concluded that the Suspension Clause was in full effect regarding these detainees.


Pub. L. 107–40, 115 Stat. 224 (2001). back
542 U.S. 507 (2004). There was no opinion of the Court. Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided ruling on the Executive Branch argument that such detentions could be authorized by its Article II powers alone, and relied instead on the “Authorization for Use of Military Force” passed by Congress. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, although his dissenting opinion found that such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsberg, rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus. back
At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decisionmaker, and must be allowed to consult an attorney. 542 U.S. at 533, 539. back
542 U.S. 466 (2004). back
Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). back
The petitioners were Australians and Kuwaitis. back
Rasul v. Bush, 542 U.S. at 467. back
The Court found that 28 U.S.C. § 2241, which had previously been construed to require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen arrested on American soil, was remanded after the Court found that a federal court’s habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld not sufficient to satisfy presence requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens held by the Multinational Force—Iraq, an international coalition force operating in Iraq and composed of 26 different nations, including the United States. The Court concluded that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. back
Detainee Treatment Act of 2005, Pub. L. 109–148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay”). After the Court decided, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, the language was amended by the Military Commissions Act of 2006, Pub. L. 109–366, to also apply to pending cases where a detainee had been determined to be an enemy combatant. back
553 U.S. 723 (2008). back
U.S. Const. Art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In Boumediene, the government argued only that the Suspension Clause did not apply to the detainees; it did not argue that Congress had acted to suspend habeas. back
“[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on this point.” 553 U.S. at 752. back
553 U.S. at 764. “[Q]uestions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id. back