U.S. Supreme Court Rejects Bush Administration Position on Guantanamo Detainees: The Watershed of the Boumediene v. Bush Line of Cases

22 Pages Posted: 27 May 2009 Last revised: 14 Sep 2013

Date Written: May 20, 2009


The line of four Supreme Court cases culminating in the 2008 decision in Boumediene v. Bush are a watershed in American jurisprudence as to the separation of powers and vitality of the writ of habeas corpus. The context was the status and treatment of persons captured primarily in the U.S. invasions of Afghanistan and Iraq and held at Guantanamo Bay, Cuba. Guantanamo was chosen by the Bush administration in the belief that the writ of habeas corpus could not reach outside the United States. The administration further maintained that the Executive had plenary power over the conduct of war, including capture and treatment of those whom it considered to be "enemy combatants."

The Supreme Court decisions reflected caution in the exercise of judicial review as to sensitive matters of national security, but proceeded, in decision after decision, to limit or reject the administration's positions. The government's sovereignty-based test for habeas corpus was replaced by a pragmatic case-by-case approach. Further, the Court looked to a full range of sources applicable to the standards to be applied by a court on habeas corpus, recognizing the references to the Geneva conventions and international law principles in both the UCMJ and American law. Thus the Boumediene line of cases has strengthened the legal basis for limits on the power of the American government to detain alleged enemy combatants, expanded the availability of the writ of habeas corpus to challenge status and conditions of detention, and affirmed the applicability of the international law of armed conflict.

The article ends with an evaluation of the legal standards after Boumediene as to such unresolved issues as the process now due to detainees in habeas proceedings; whether a writ of habeas corpus can be used to challenge not only designation and detention as an enemy combatant but also other treatment; whether Boumediene applies to detainees held outside the U.S. other than at Guantanamo; the power of the government to hold persons in the U.S. without charges on the grounds that they are enemy combatants; whom the U.S. may hold as an "enemy combatant" indefinitely until the end of hostilities without filing charges; and whether the new procedures for military commission trials adopted by the Military Commissions Act of 2006 (and as altered by further procedural safeguards by the Obama administration) meet the requirements of the U.S. Constitution and the Geneva Conventions.

Keywords: Geneva convention, habeas corpus, Boumediene, enemy combatant

JEL Classification: K33

Suggested Citation

Sherman, Edward F., U.S. Supreme Court Rejects Bush Administration Position on Guantanamo Detainees: The Watershed of the Boumediene v. Bush Line of Cases (May 20, 2009). Tulane Public Law Research Paper No. 09-08, Available at SSRN: https://ssrn.com/abstract=1407582 or http://dx.doi.org/10.2139/ssrn.1407582

Edward F. Sherman (Contact Author)

Tulane University Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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