Rasul v. Bush

Rasul v. Bush
Supreme Court of the United States
Argued April 20, 2004 Decided June 28, 2004
Full case name	Shafiq Rasul, et al., Petitioners v. George W. Bush, President of the United States, et al.; Fawzi Khalid Abdullah Fahad al Odah, et al., Petitioners v. United States, et al.
Citations	542 U.S. 466 (more) 124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596; 2004 Fla. L. Weekly Fed. S 457
Prior history	On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Al Odah v. United States, 355 U.S. App. D.C. 189, 321 F.3d 1134, 2003 U.S. App. LEXIS 4250 (2003)
Holding
The degree of control exercised by the United States over the Guantanamo Bay base is sufficient to trigger the application of habeas corpus rights. The right to habeas corpus can be exercised in all dominions under the sovereign's control.
Court membership
Chief Justice William Rehnquist Associate Justices John P. Stevens · Sandra Day O'Connor Antonin Scalia · Anthony Kennedy David Souter · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer
Case opinions
Majority	Stevens, joined by O'Connor, Souter, Ginsburg, Breyer
Concurrence	Kennedy
Dissent	Scalia, joined by Rehnquist, Thomas

Rasul v. Bush, 542 U.S. 466 (2004), is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned. The 6-3 ruling on June 28, 2004, reversed a District Court decision, which held that the Judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. Justice John Paul Stevens wrote the majority opinion and was joined by Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Anthony Kennedy concurring. Justice Antonin Scalia filed a dissenting opinion and was joined by William Rehnquist and Clarence Thomas. The claimant whose name the case bears, Shafiq Rasul, was released before the decision was handed down.

Overview

In early 2002, the Center for Constitutional Rights (CCR) was the first organization to file two habeas corpus petitions, Rasul v. Bush and Habib v. Bush, challenging the U.S. government’s practice of holding foreign nationals captured in Afghanistan during the war against the Taliban regime and al-Qaida in detention indefinitely. The detainees had been designated enemy combatants and did not have access to counsel, the right to a trial or knowledge of the charges against them. The Supreme Court, over the administration’s objections, agreed in November 2003 to hear the cases of the Guantánamo detainees, namely Rasul v Bush and al Odah v. Bush. The arguments were heard on April 20, 2004. In a ruling on June 28, 2004, the Court ruled that the habeas corpus statute, 28 U.S.C. § 2241, entitled the detainees to challenge the validity of their detention.

Circumstances of capture

The various plaintiffs came to be in Guantanamo Bay by different routes, but were generally captured or arrested during the U.S. invasion of Afghanistan.

The US Military transferred Rasul, Asif Iqbal and David Hicks, who denied voluntarily joining any terrorist forces, to Guantanamo Bay in December 2001. As noted by the District Court, they did not deny having fought for the Taliban, but claimed that if they did take up arms, it was only when being attacked and in self-defense.^{[citation needed]} Rasul and Iqbal say they were with the Taliban because they were taken captive. Hicks is silent on the matter in court filings, but his father, in filing the brief, stated that he believed that his son had joined the Taliban forces.

The twelve Kuwaitis claimed that they were in Pakistan and Afghanistan giving humanitarian aid, and were seized by villagers seeking bounties. They were transferred to Guantanamo Bay starting in January 2002.

Mamdouh Habib was arrested by Pakistani authorities on October 5, 2001, two days before the fighting began.

Procedural history

Original filings

These cases were filed in the Washington, D.C., District Court and the court decided them together. Each of the filings alleged that the government had not allowed them to speak at all to friends, family or lawyers, and had not given them any hearing whatsoever on the question of whether they were in fact enemy combatants in the war.

Rasul v. Bush

Rasul v. Bush [1] was a petition for a writ of habeas corpus (release from unlawful imprisonment) filed on February 19, 2002 by Asif Iqbal and Shafiq Rasul of British citizenship, and David Hicks of Australian citizenship. Their petition requested:

• That they be released
• That they be allowed to have private, unmonitored conversations with their attorneys
• That interrogations cease until the trials were complete

Habib v. Bush

Mamdouh Habib, an Australian citizen, filed a suit [2] very similar to Rasul on June 10, 2002. The Court dismissed it, on the same grounds as the other two, on August 8.

District Court's decision

The District Court dismissed the cases with prejudice on July 30, 2002, on grounds that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. It first ruled that the Odah petitioners were in fact asking for habeas corpus, as they were "plainly challeng[ing] the legality of their custody." This meant that jurisdiction would be considered for both cases as though they were asking for release from prison.

Citing Johnson v. Eisentrager, 339 U.S. 763 (1950), in which the Supreme Court ruled that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison, the District Court ruled that U.S. courts only have jurisdiction in a territory where the U.S. has sovereignty. Because the treaty with Cuba regarding Guantanamo Bay stated that Cuba technically has "complete sovereignty" (though, as the plaintiffs pointed out, the U.S. has all effective powers in the area), the court held, Guantanamo Bay could not be considered a sovereign territory of the United States and therefore foreign nationals could not be given a trial in the U.S.

Court of Appeals decision

The cases were appealed together on August 8, 2002, to the United States Court of Appeals for the District of Columbia Circuit. It affirmed the lower court's decision, stating there was no U.S. court that had jurisdiction over Guantanamo Bay.

Supreme Court

The case was appealed to the Supreme Court on September 2, 2003, and heard on April 20, 2004.

Release of Rasul and Iqbal

On March 9, 2004, two years after they were first detained, Rasul and Iqbal were released to the United Kingdom with no charges filed, along with three others. On the other hand, the government announced that it planned to charge Hicks and Habib before a military commission. Habib was later released.

Court documents

Hague Justice Portal: Rasul et al. v. Bush et al., Court documents

Question of jurisdiction

The sole question before the Supreme Court in this case is whether foreign nationals in Guantanamo Bay may invoke habeas corpus (wrongful detainment) at all. Either U.S. citizenship or court jurisdiction is necessary for this invocation, and since the detainees are not citizens, U.S. court jurisdiction over Guantanamo Bay was at issue. According to the U.S. treaty with Cuba over Guantanamo Bay, the U.S. has "complete jurisdiction" over the base, but Cuba has "ultimate sovereignty." The government alleges that the fact that the treaty says this implies that the courts have no jurisdiction; the detainees argue that regardless of what the treaty says, the U.S. has full legal control in the area and should have jurisdiction.

Stevens' role

Justice Stevens had interesting and unique history with the key precedents cited in the opinion of the case. Much of the opinion was built around the Eisentrager ruling, which was based on Ahrens v. Clark′s holding that petitioners invoking Habeas Corpus must direct their claim to the court that has jurisdiction where they are held: therefore, since Eisentrager's German detainees were in China and clearly no US court holds jurisdiction there, they could not file a Habeas motion. However, a later case, Braden v. 30th Judicial Circuit Court of Kentucky, relaxed Ahrens' rule, thereby undercutting the logic used in Eisentrager. What is interesting about this line of reasoning is that neither parties to the case argued this to the court. It was made by Justice Stevens, who was uniquely suited to decide on this case as he was a law clerk for Justice Rutledge and actually drafted the dissenting opinion in Ahrens. Stevens kept track of the impact of the Ahrens ruling as it was relied upon in Eisentrager and even later wrote a biography of Rutledge for a law review where he used Ahrens as an example of Rutledge's skill and care as a justice. It was with this inside knowledge of the history of the law surrounding the issues at question in Rasul that Stevens was able to craft such a detailed opinion relying upon such obscure but relevant precedent.

Oral arguments

During the oral arguments the following points came up:

• Many of the Justices' questions indicated a belief that Johnson v. Eisentrager was immaterial to the jurisdictional question at hand, while the government argued that it was material. Justice Stevens went further to note that the Ahrens v. Clark decision, on which Eisentrager case was decided, had since been largely reversed, and thus relevant parts of Eisentrager may no longer apply.
• Justice Souter noted that the ability of a U.S. citizen to get a trial may necessarily imply that the court has jurisdiction in that geographic area, since jurisdiction is largely a geographic and sovereignty matter. Since the government has said it would not challenge habeas corpus by a U.S. citizen in Guantanamo Bay, this could establish jurisdiction in the area.
• There was some concern in the court that there is a gray area where certain types of cases would fall through the cracks, as it were, because no one has real jurisdiction except the U.S. military. On the other hand, Justice Scalia noted, it may be possible, and better, for Congress to remedy that situation, as they have deliberative powers the court does not.

Quotes

Justice Scalia regarding the purpose of jurisdiction: "The Constitution requires jurisdiction — the Constitution requires that an American citizen who has the protection of the Constitution have some manner of vindicating his rights under the Constitution."

Justice Breyer on whether to deny jurisdiction to citizens outside the U.S. "So what I'm thinking now, assuming that it's very hard to interpret Eisentrager, is that if we go with you, it has a virtue of clarity. There is a clear rule. Not a citizen outside the United States; you don't get your foot in the door. But against you is that same fact. It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."

Justice Scalia on whether the courts or Congress are better suited to rewrite laws: "Can we hold hearings to determine the problems that are bothering you? I mean, we have to take your word for what the problems are. We can't call witnesses and see what the real problems are, can we, in creating this new, substantive rule that we're going to let the courts create? Congress could do all that, though, couldn't it? ... If it wanted to change the habeas statute, it could make all sorts of refined modifications about issues that we know nothing whatever about because we have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts."

See also

• List of United States Supreme Court cases, volume 542
• List of United States Supreme Court cases
• Ex parte Milligan
• Ex parte Quirin
• Johnson v. Eisentrager
• Rumsfeld v. Padilla
• Hamdi v. Rumsfeld
• Al Odah v. United States
• Boumediene v. Bush
• Munaf v. Geren

Further reading

• Martin, David A. (2005). "Offshore Detainees and the Role of Courts after Rasul v. Bush: The Underappreciated Virtues of Deferential Review". Boston College Third World Law Journal 25: 125. ISSN 02763583. 
• Osborn, Meredith B. (2005). "Rasul v. Bush: Federal Courts Have Jurisdiction over Habeas Challenges and Other Claims Brought by Guantanamo Detainees". Harvard Civil Rights-Civil Liberties Law Review 40: 265. ISSN 00178039. 
• Roosevelt, Kermit (2005). "Guantanamo and the Conflict of Laws: Rasul and Beyond". University of Pennsylvania Law Review (The University of Pennsylvania Law Review) 153 (6): 2017. doi:10.2307/4150656. JSTOR 4150656. http://www.pennumbra.com/issues/article.php?aid=60. 
• Thai, Joseph (2006). "The Law Clerk Who Wrote Rasul v. Bush: John Paul Stevens's Influence from World War II to the War on Terror". Virginia Law Review 92: 501. ISSN 00426601. http://jay.law.ou.edu/faculty/thai/pub/Thai%20-%20The%20Law%20Clerk%20Who%20Wrote%20Rasul%20v.%20Bush.pdf. 
• Wilke, Christiane (2005). "War v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts". Politics & Society 33 (4): 637–669. doi:10.1177/0032329205280926. 

External links

• Center for Constitutional Rights (New York City-based legal non-profit) webpage with detailed and updated information
• Full text of the Supreme Court decision from Findlaw
• Summary of the case and Supreme Court decision from Oyez
• Supreme Court Decision goes against Bush
• Briefs and papers filed for Rasul v. Bush
• information about the filing of the brief by CCR
• Duke Law School, Detail of the case and a commentary