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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings Boumediene v. Bush, 553 U.S. __, 128 S.Ct. 2229 (2008)

In the aftermath of the Hamdan decision, Congress enacted the Military Commissions Act of 2006 (MCA), which, inter alia, expressly eliminated court jurisdiction over all pending and future causes of action other than the limited review permitted under the DTA. In the 2008 case of Boumediene v. Bush, the Court ruled in a 5-4 opinion that the constitutional privilege of habeas extends to Guantanamo detainees. In doing so, the Court stated that the Constitution's extraterritorial application turns on "objective factors and practical concerns." The Court deemed at least three factors to be relevant in assessing the extraterritorial scope of the constitutional writ of habeas: (1) the citizenship and status of the detainee and the adequacy of the status determination process; (2) the nature of the site where the person is seized and detained; and (3) practical obstacles inherent in resolving the prisoner's entitlement to the writ.

The Court also found that MCA § 7, which limited judicial review of executive determinations of the Boumediene petitioners' enemy combatant status to that authorized by the DTA, did not provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the writ of habeas corpus. The majority listed a number of potential constitutional infirmities in the DTA review process, including the absence of provisions (1) empowering a reviewing court to order the release of a detainee found to be unlawfully held; (2) permitting petitioners to challenge the President's authority to detain them indefinitely; (3) enabling a presiding court to review or correct administrative findings of fact which formed the legal basis for an individual's detention; and (4) permitting the detainee to present exculpatory evidence discovered after the conclusion of administrative proceedings.

Although the Boumediene Court held that the constitutional writ of habeas extends to noncitizens held at Guantanamo, it did not opine as to the scope of habeas review available to detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo and elsewhere.

Gates v. Bismullah, 128 S.Ct. 2960 (2008) (Mem.)

Prior to the Supreme Court's decision in Boumediene, the D.C. Circuit Court of Appeals considered a number of challenges brought under the DTA in which detainees contested determinations by Combatant Status Review Tribunals (CSRTs) that they were properly detained as enemy combatants. In 2008, the government petitioned the Supreme Court to review two rulings by the D.C. Circuit regarding the scope of judicial review of CSRT determinations.