Rasul v. Bush, 542 U.S. 466 (2004)

Facts—Two Australian citizens and twelve Kuwaiti citizens who were captured in Afghanistan were among about 640 non-American citizens who were being held at the American Naval Base in Guantanamo Bay, which the U.S. leased from Cuba. These aliens filed for writs of habeas corpus. Both U.S. district and the U.S. circuit courts denied the petitions, relying largely on the precedent in Johnson v. Eisentrager (1950) involving aliens that the U.S. held at a base in Germany.

Question—Does the habeas corpus statute confer “a right to judicial review of the legality of executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ‘ultimate sovereignty?’”

Decision—Yes

Reasons—J. Stevens (6–3). Congress has given jurisdiction to federal courts over habeas corpus since the Judiciary Act of 1789, but habeas corpus is itself “a writ antecedent to statute throwing its root deep into the genius of our common law.” The writ has been used “in a wide variety of cases involving executive detention, in wartime as well as in times of peace.” The petitioners in this case differ from those in Eisentrager. Notably, they “are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States.” They have not been charged with wrongdoing, or been given access to a tribunal. Eisentrager devoted little attention to statutory jurisdiction because it relied on a previous decision in Ahrens v. Clark (1948) that had limited such jurisdiction in the case of others. Subsequent decisions have, however, filled in this statutory gap. Most notably Braden v. 30th Judicial Circuit Court of Ky (1973), ruled that prisoners no longer needed to be within the exercise of district court jurisdiction to qualify for habeas corpus review. By treaty, the U.S. exercises “complete jurisdiction and control” over Guantanamo. Statutes draw no distinction between citizens and aliens for such purposes so “Aliens held at the base, no less than American citizens, are entitled to invoke the federal court’s authority” under the law. Historically, the writ extended to any territory “under the subjection of the Crown.” The Alien Tort Statute is another possible source of jurisdiction.

J. Kennedy, concurring. The decision needs to be understood in light of separation of powers. Although Eisentrager “indicates that there is a realm of political authority over military affairs where the judicial power may not enter,” this case differs in that “Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from hostilities.” Moreover, the detainees are being kept there indefinitely.

J. Scalia, dissenting. This is a novel holding that contradicts Johnson v. Eisentrager and misconstrues Ahrens v. Clark. “Federal courts are courts of limited jurisdiction,” and they do not have jurisdiction in this case. The Court “springs a trap on the Executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.” The U.S. cannot exercise complete jurisdiction without sovereignty, and English historical precedents limited jurisdiction “to British subjects.” Departing from precedents is especially unjustified in cases affecting the nation’s ability to make war. This is “judicial adventurism of the worst sort.”