“Boumediene vs. Bush” Analysis


Lakhdar Boumediene, a citizen of Bosnia and Herzegovina and an Algerian native, is a plaintiff in the case along with five other individuals who were detained after US intelligence suspected them of taking part in the planning of a terrorist attack at the US embassy in Bosnia. The US government, a defendant in the case, defined them as enemy combatants and detained them at the Guantanamo Bay Naval Base. The plaintiffs petitioned to exercise the constitutional privilege of habeas corpus and complained about the violation of the Constitution’s due process clause on the part of the defendant.

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The District Court ruled against the petitioners on the ground that the habeas statute does not extend to aliens detained at Guantanamo. Consequently, the decision was confirmed by the U.S. Court of Appeals for the D.C. Circuit, which referred to the Military Commissions Act (MCA) passed by Congress in 2006 to eliminate the judicial review of habeas applications from petitioners having enemy combatant status. However, the Supreme Court held that Boumediene and others have a right to the habeas petition, whereas the deprivation of this right was unconstitutional.


  1. Can the MCA be regarded as a violation of the Suspension Clause of the Constitution?
  2. Were the petitioners unlawfully deprived of liberty without due process?


The Supreme Court reversed previous court decisions and held that § 7 of MCA “acted as an unconstitutional suspension of the writ of habeas.1 In a 5-4 decision for Boumediene and others, the plaintiffs were granted the right to habeas corpus.


According to the Suspension Clause, “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.”2 The clause does not indicate extraterritorial application of the Constitution, and thus, it has full effect at Guantanamo. In this decision, the Court referred to similar legal cases such as Johnson v Eisentrager, 339 U.S. 763 (1950), that involved discussion of the Constitution’s geographic scope.

For instance, in Johnson v Eisentrager, the detainees imprisoned outside the United States were denied the right to habeas corpus and were convicted for crimes committed outside the country. Based on that case, several factors for the determination of the Suspension Clause’s applicability for Boumediene and others were identified. These included the citizenship of the detained, compliance with the law during their status determination, characteristics of the detention and apprehension settings, and practical barriers to the writ of habeas entitlement.3

The second factor was particularly important in Boumediene’s case because they wanted to dispute their status as enemy combatants. It was revealed that the Combatant Status Review Tribunal did not provide adequate procedural protections during the hearing, in which the law permits alien detainees to present reasonable evidence as needed to challenge their detention. If the right to habeas corpus is not a viable option, the tribunal should arrange a substitute process with similar procedural protections and opportunities as those associated with the writ of habeas corpus. Since the suspension of the right to habeas petition under the MCA does not afford such a substitution, it is deemed unconstitutional.


The Court’s final decision in Boumediene v Bush serves to protect the rights of the military detainees at Guantanamo and minimizes the chances of their unfair treatment. At the same time, the case limited the government’s ability to combat terrorism by making the prosecution process more complicated. Nevertheless, the government may still use some uncertainties in the Court’s ruling in its favor. For example, it was not identified whether the guaranteed constitutional protections apply to alien detainees in other locations besides Guantanamo.4 Moreover, some major terrorist attacks may be potentially classified as a rebellion or invasion, and thus, the suspension of the writ may apply to enemy combatants involved in them.

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Garcia, Michael John. “Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus.Federation of American Scientists. Web.

Justia. “Boumediene v. Bush, 553 U.S. 723 (2008).Justia: US Supreme Court. Web.

Legal Information Institute. “Clause 2.” Cornell Law School. Web.


  1. Michael John Garcia, “Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus,” Federation of American Scientists. Web.
  2. Legal Information Institute, “Clause 2,” Cornell Law School. Web.
  3. Justia, “Boumediene v. Bush, 553 U.S. 723 (2008),” Justia: US Supreme Court. Web.
  4. Garcia, “Boumediene v. Bush”.
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