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Legal Brief of Rasul v. Bush (2004) by: David A.W. Hittle

Rasul v. Bush 542 U.S. 466; 124 S.Ct. 2686; 159 L.Ed. 2d. 548 (2004) Vote 6 to 3

The facts of the case are these: “On November 13, 2001, President George W. Bush signed an executive order authorizing the creation of military tribunals for the detention and trial of foreign nationals apprehended in the ‘was against terrorism.’ The government subsequently incarcerated more than seven hundred ‘enemy aliens’ captured in Afghanistan and elsewhere at the American Naval Base at Guantanamo Bay, Cuba. Most were held in solitary confinement, restricted to 6 by 8 foot cells for more than twenty-three hours a day. Inmates were not permitted to have contact with anyone outside the camp, including lawyers and family members, nor were they afforded any sort of judicial or administrative process to review their status.” 

“In 2002, relatives of twelve Kuwaiti nationals detained at Guantanamo Bay filed petitions for habeas corpus in the federal district court for the District of Columbia. Their petitions asserted that these detainees were not enemy combatants and that they were being detained without due process of law. Plaintiffs sought an injunction ordering that these detainees be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families.” 

“The federal district court dismissed the case, ruling that it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States. The U.S. Court of Appeals for the District of Columbia Circuit affirmed. It based its decision primarily on Eisentrager v. United States (1950), in which the Supreme Court held that nonresident enemy aliens have no access to American courts during wartime.” 

The issues of this case are these: 1. “Do Courts in the United States have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad, and incarcerated at the Guantanamo Bay Naval Base, Cuba.” 2. “Do the Courts have the right to judicial review over the legality of executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ‘ultimate sovereignty.”… 3. “Are these ‘enemy aliens’ fall under the decision of Eisentrager?” 4. Are American citizens protected by the habeas corpus statue or are all people under the jurisdiction of the United States protected by the habeas corpus statue?


  1. The Court finds that “by the express terms of its agreements with Cuba, the United States exercises ‘complete jurisdiction and control’ over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.” Therefore the Court finds that Courts of the United States do have jurisdiction at Guantanamo Bay, Cuba.
  2. The Court finds that “At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm as well as the claims of persons detained in the so-called ‘exempt jurisdictions,’ where ordinary writs did not run, and all other dominions under the sovereign’s control.” Therefore the Court finds that Common Law allows for exercising of habeas jurisdiction for alien detainees in both “sovereign territory” as well as “so-called ‘exempt jurisdictions.’
  3. In Eisentrager, the Court found that “21 German citizens who had been captured by U.S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incarcerated in the Landsberg Prison in occupied German….” These German citizens were denied the right to habeas corpus by the Courts. The Court in this case finds that there is a difference between the Eisentrager ‘citizen requirement in this case the detained were not citizens of a country in which the United States was at war with (Kuwait) and therefore didn’t fall under the Eisentrager doctrine.
  4. The Constitution of the United States guarantees the “privilege of the Writ of Habeas Corpus” under Article 1, Section 9 of the Constitution of the United States. That article doesn’t convey whether this is conveyed to only citizens or others. For this we look at Article 6, Subsection 2 which states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state be bound thereby, and Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” So from this we find that the Writ of Habeas Corpus is the ‘Supreme Law of the Land.’ The Court found that: “Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship. Aliens held at the base, no less than Americans citizens, are entitled to invoke the federal courts’ authority….”

The holding this case is as follows: “Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. [The habeas corpus statute] by its terms, requires nothing more. We therefore hold that [it] confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base….” 

The Rationale in this case is based on: The fact that the District Court dismissed the case on the grounds that they didn’t have jurisdiction. Since that court hadn’t tried the case, the Supreme Court remanded the case back to that Court for review and decision. 

Other opinions in this case include: Justice Kennedy, concurring in the judgment saying: “The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba.” Justice Kennedy agrees with the decision but believes the framework of Eisentrager should be followed. He finds a realm of “political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander and Chief, and the joint role of the President and the Congress, in the conduct of military affairs.”

Justice Scalia, with whom the Chief Justice and Justice Thomas join, dissenting saying: “…Today’s opinion, and today’s opinion alone, over-riles Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of the courts.” 

The significance of this case is that: The Supreme Court established for one that the U.S. Naval Base in Cuba is under the jurisdiction of the United States and the United States Courts. The Supreme Court also established that anyone who falls under the jurisdiction of the United States is protected by the habeas corpus privilege granted in the Constitution of the United States, the “supreme Law of the Land.” 

I disagree with majority opinion in this case and agree to what the minority has stated. I don’t believe that the federal courts judicial review power extends to territory outside of the sovereign territory of the United States. Guantanamo Bay, Cuba is not within the federal circuits or federal districts like every other territory that the judicial power is extended to. I also disagree that individuals outside that territory are protected by the Constitution of the United States. I further agree with the Bush administration and the Legislature when it decided to strip the jurisdiction of the federal courts from hearing cases involving these “enemy combatants.”