Rasul v. Bush

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Rasul v. Bush is a 2004 decision in which the United States Supreme Court held that detainees captured in Afghanistan and held at Guantánamo Bay in Cuba could challenge their confinement in American courts by writ of habeas corpus. Justice Stevens delivered the opinion of the Court and was joined by Justices O'Connor, Souter, Ginsberg and Breyer. Justice Kennedy filed a concurring opinion and a dissenting opinion was filed by Justice Scalia, in which Chief Justice Rehnquist and Justice Thomas joined.[1]

Procedural Aspects

Petitioners consisted of 2 Australian and 12 Kuwaiti men captured by U.S. troops during hostilities between the United States and the Taliban. In 2002, through relatives acting as "next friends," they filed various actions in the U.S. District Court in Washington D.C. All alleged that they had never been combatants against the United States or engaged in terrorist acts. They also alleged that they had not been charged with any wrongdoing, were no permitted to consult with a lawyer and were refused access to the courts or any other tribunal.

The Australians each filed formal writs of habeas corpus seeking release from custody, access to lawyers, freedom from interrogations and other relief. The Kuwaitis filed a joint complaint seeking to be informed of the charges against them, allowed visits from family members and counsel, and permitted access to the courts or some other impartial tribunal.

District Court & Court of Appeals Proceedings

The District Court construed the three actions* as petitions for writs of habeas corpus and dismissed them for lack of jurisdiction, relying on Johnson v. Eisentrager, 339 U.S. 763 (1950), that "aliens detained outside the sovereign territory of the United States "[may not] invok[e] a petition for a writ of habeas corpus." 215 F. Supp. 2d 55, 68 (DC 2002). The U.S. Court of Appeals for the District of Columbia affirmed, reading Eisentrager as holding that "'the privilege of litigation' does not extend to aliens in military custody who have no presence in any territory over which the United States is sovereign,'" 321 F. 3d 1134, 1144 (CADC 2003) (quoting Eisentrager, 339 U.S., at 777-778).

(The three actions, consolidated on appeal, are Rasul v. Bush, Habib v. Bush and Al Odah v. United States.)[2]

The Majority Decision

Justice Stevens' majority decision distinguished Eisentrager, cited above, by noting that the petitioners "are not nationals of countries at war with the United States" and "deny that they have engaged in or plotted acts of aggression against the United States." Moreover, where the defendants in Eisentrager had been tried and convicted by a military tribunal in Nanking and then incarcerated in occupied Germany, the petitioners here were imprisoned "in territory over which the United States exercises exclusive jurisdiction and control."

The majority reasoned that absolute sovereignty was unnecessary, since under its agreements with Cuba, the United States exercised "complete jurisdiction and control" over the Guantánamo Bay Naval Base and may do so permanently if it so chooses. Furthermore, the general federal habeas corpus statute, 18 U.S.C. Section 2241, makes no distinction between Americans and aliens held in federal custody. If Americans at Guantánamo Bay have a right of habeas corpus, as the Bush Administration conceded, then so do foreign citizens.

Justice Stevens cited three precedents as clearing the way for his determination of the novel question presented in the case. The first of these was Ahrens v. Clark, 335 U.S. 188, which, he said, left open "the question 'of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights.'" (Nevertheless, as Justice Scalia noted in his dissent, Ahrens' clearly held that "the writ can issue only when the place of confinement lies within the limits of the court's territorial jurisdiction.")

The second precedent was Eisentrager, although Justice Stevens cited not the decision (which went against petitioners in that case) but the process by which it was reached. The Court of Appeals had found that "if a person has the right to a writ of habeas corpus, he cannot be deprived of the privilege by an omission in a federal jurisdiction statute." Like the Court of Appeals, the Supreme Court in Eintrager assumed that "nothing in our statutes" conferred federal-court jurisdiction in such a case, and so it went on to evaluate whether the petitioners had a fundamental right to habeas corpus regardless of the wording of the statute. This approach, according to Justice Stevens, invites the Court to disconsider the language of any jurisdictional statute which might apply to the Guantánamo petitioners.

Finally, Justice Stevens cited Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, as standing for the proposition that "the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody." This interpretation was vigorously disputed in Justice Scalia's dissent and occasioned Justice Kennedy's concurring opinion.

Ultimately, however, the result in Rasul rested on the historical breadth of the right of habeas corpus rights at common law. Citing British case law, Justice Stevens noted that the availability of the writ traditionally "depended not on formal notions of territorial sovereignty, but rather on the practical question of 'the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown." Ex parte Mwenya, [1960] 1 Q.B. 241, 303 (C.A.) (Lord Evershed, M.R.); see also King v. Cowle, [1759] 2 Burr. 834, 854-55, 97 Eng. Rep. 598-99 (K.B.).

Justice Kennedy's Concurring Opinion

Justice Kennedy concurred in the result but avoided the Stevens majority's attempt to root its decision in the holding of Braden v. 30th Judicial Circuit Court of Kentucky. Instead, he emphasized that the lease for Guantánamo Bay is far from ordinary:

Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the "implied protection" of the United States to it.

Justice Kennedy further found that the position of the petitioners at Guantánamo required redress. The detainees were "being held indefinitely, and without benefit of any legal proceeding to determine their status." By contrast, the prisoners in Eisentrager had been tried and convicted in a military court in China and there was thus no necessity to allow them access to U.S courts to determine whether they were enemy aliens. "Indefinite detention without trial or other proceeding," Justice Kennedy wrote,

presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Factor Johnson v. Eisentrager Rasul v. Bush In re Yamashita
Citizenship Nationals of a country at war with the U.S. Not citizens of an opponent in a state of war National of a state previously at war
Relationship to U.S. Never been in U.S.
Capture Captured outside U.S. territory and held in military custody Captured in U.S. possession under military law; recognized prisoner of war
Judgment Tried and convicted by military
Acts Committed outside U.S. against troops Deny plotting acts against the U.S. Committed outside U.S. against troops and civilians
Custody In disputed territory (postwar and occupation) In territory over which the U.S. has exclusive control In U.S. territory (postwar)


  1. Rasul et al. v. Bush, Secretary of Defense, et al.',  542 U.S. John Paul Stevens, 466 (Supreme Court of the United States June 28, 2004)
  2. Rasul v. Bush & Al-Odah v. U.S.: The Right of Habeas Corpus: Defending Due Process for Guantanamo Detainees, Center of Justice and Accountability