The Supreme Court,
Habeas Corpus & Guantanamo

By Alan Shapiro

To the Teacher:

The Supreme Court decision granting habeas corpus rights to Guantanamo prisoners offers a teachable moment for helping students understand the importance of those rights and why granting them to non-citizens is controversial. The reading reviews the Boumediene case and its context and is followed by discussion questions.

For additional background, teachers might find useful the following materials in the high school section of www.teachablemoment.org: "A Controversial New Law for Terror Suspects" on the Military Commissions Act of 2006; "Presidential Power: Guantanamo's 'Enemy Combatants'" on early Bush administration decisions about the treatment of Guantanamo prisoners; "The Constitution, War Crimes & Guantanamo Justice" on how Guantanamo was leased to the United States and on some of the detainees and their treatment; and "Presidential Election 2008: The Supreme Court" on the ideological divisions among the current justices, the frequent 5-4 rulings and a series of historical court rulings on race.

Student Reading

Six Algerian Men

Lakhdar Boumediene and five other Algerian men traveled to Bosnia during the 1990s. All six married, gained Bosnian citizenship and took jobs working with orphans for Muslim charities.

Soon after 9/11, in October 2001, the U.S. Embassy in Sarajevo requested the arrest of the six men. Intelligence officers suspected a plot to attack the embassy. The police searched the men's apartments for evidence, but found none. Boumediene and the others were released.

But on the night of January 17, 2002, U.S. agents kidnapped the six men and "rendered" them to the American prison at Guantanamo in Cuba. During the more than six years since, the men say they have been "subject to 'enhanced interrogation techniques,' involving prolonged isolation, forced nudity and sleep deprivation." (www.news.bbc.co.uk,, 12/4/07)

Their case became known as Boumediene v. Bush. In addition to Boumediene, 36 other men petitioned the Supreme Court challenging their imprisonment as "enemy combatants" under Article I, Section 9 of the Constitution. It states:

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.

"Habeas corpus" originated in 14th century England to prevent kings from imprisoning people indefinitely without charging them with any crime. A habeas corpus petition is filed with a court by someone who objects to his own or another person's imprisonment or detention. Under habeas corpus, the inmate must be brought to court so it can be determined whether or not he or she has been imprisoned lawfully and whether he or she should be released from custody.


The Military Commissions Act

In the Military Commissions Act of 2006, for the first time in American history, Congress declared that non-citizens have no right to habeas corpus. In practice, this law means the government can imprison any non-citizen indefinitely without filing any criminal charges, which is the situation facing 270 men now being detained at the U.S.'s Guantanamo prison.

Beginning in January 2002 the U.S. imprisoned at Guantanamo more than 750 terrorist suspects it called "enemy combatants" from 45 countries. President Bush said that because these men were not soldiers for any country, they did not qualify for "prisoner-of- war status" under provisions of the Geneva Convention. (The convention bars the torture of prisoners of war.) Most of the suspects have been released since without being charged and tried for any crime.

Basic questions the Supreme Court had to answer in the Boumediene case:

1. As non-citizens, do "enemy combatants" have the right to ask the government to justify their imprisonment as habeas corpus requires? Answer: Yes

2. Does the Constitution apply to detainees held not on American soil, but in a foreign country, in this case Cuba? (Since 1903, the U.S. has leased Guantanamo, but Cuba maintains "ultimate sovereignty," according to the 105-year-old agreement between the two countries.) Answer: Yes

3. As requested by the Bush administration, Congress passed the Military Commissions Act of 2006 (MCA), denying federal courts the power to consider habeas corpus petitions of non-citizens. Is this provision of the MCA constitutional? Answer: No

In a 5-4 decision written for the majority by Justice Anthony Kennedy, the Supreme Court said that the president must have "substantial authority to apprehend and detain those who pose a real danger to our security." But security depends, too, on "fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives….

"The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply….The political branches [do not] have the power to switch the Constitution on and off….[Otherwise] we would have a regime in which Congress and the President, not this Court, say 'what the law is.'"

Writing for the dissenters, Chief Justice John Roberts Jr. said: "So who has won? Not the detainees. The court's analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation….Not Congress, whose attempt to determine-through democratic means-how best to balance the security of the American people with the detainees' liberty interests has been unceremoniously brushed aside….And certainly not the American people, who today lose a bit more control over the conduct of this nation's foreign policy to unelected, politically unaccountable judges."

The Bush administration has now lost a series of Supreme Court cases on the appropriate legal treatment of Guantanamo detainees. In the past few years the court has ruled that:

1. An American citizen held as an enemy combatant has the right to challenge his detention in a U.S. court

2. Guantanamo is effectively American territory.

3. Non-citizen detainees have the right to some kind of due process in American courts.

4. The President cannot establish military tribunals without congressional approval and must honor the Geneva Conventions. Congress then passed the Military Commissions Act giving detainees a number of rights-but not some others, including habeas corpus. In its Boumediene ruling, the Supreme Court overturned this provision of the MCA.

Presidential candidates' response to the decision

Senator John McCain: "It obviously concerns me…but it is a decision the Supreme Court has made….As you know, I always favored closing of Guantanamo and I still think we ought to do that." (6/12/08)

"The Supreme Court rendered a decision which I think is one of the worst decisions in the history of this country….Our first obligation is the safety of and security of this nation and the men and women who defend it. This decision will harm our ability to do that." (6/13/08)

Senator Barack Obama: "This is an important first step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus." (6/12/08)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is habeas corpus, and why is it regarded as a very important right?

3. What is the connection between habeas corpus and American prisoners at Guantanamo?

4. Why do you suppose that the MCA denied Guantanamo prisoners habeas corpus?

5. According to Justice Kennedy, what are "freedom's first principles"? What does he mean by "the political branches"? What power do they not have? Why not?

6. According to Chief Justice Roberts, how does the decision take from the American people "the conduct of this nation's foreign policy" and put it in the hands of "politically unaccountable judges"?

7. What are the opposing views of the presidential candidates about the decision? Why do you suppose Senator McCain thinks it harms our ability to preserve "the safety and security of this nation"? Why do you suppose Senator Obama thinks it rejects "a false choice between fighting terrorism and respecting habeas corpus"?

8. Which decision would you have supported and why? If neither, what then?

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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