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Rasul v. Bush

Rasul v. Bush
Argued April 20, 2004
Decided June 28, 2004
Full case name 'Shafiq Rasul, et al., Petitioners v. George W. Bush, President of the United States, et al.; Fawzi Khalid Abdullah Fahad al Odah, et al., Petitioners v. United States, et al.'
Citations 542 U.S. 466 (more)
124 S. Ct. 2686; 159 L. Ed. 2d 548; 2004 U.S. LEXIS 4760; 72 U.S.L.W. 4596; 2004 Fla. L. Weekly Fed. S 457
Prior history On writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Al Odah v. United States, 355 U.S. App. D.C. 189, 321 F.3d 1134, 2003 U.S. App. LEXIS 4250 (2003)
The degree of control exercised by the United States over the Guantanamo Bay base is sufficient to trigger the application of habeas corpus rights. The right to habeas corpus can be exercised in all dominions under the sovereign's control.
Court membership
Case opinions
Majority Stevens, joined by O'Connor, Souter, Ginsburg, Breyer
Concurrence Kennedy
Dissent Scalia, joined by Rehnquist, Thomas

Rasul v. Bush, 542 U.S. 466 (2004), is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned. The 6–3 ruling on June 28, 2004, reversed a District Court decision, which held that the Judiciary had no jurisdiction to handle wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. Justice John Paul Stevens wrote the majority opinion and was joined by Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Anthony Kennedy concurring. Justice Antonin Scalia filed a dissenting opinion and was joined by William Rehnquist and Clarence Thomas.

The claimant whose name the case bears, the British citizen Shafiq Rasul, was one of the Tipton Three. The US transported the three men to the United Kingdom in March 2004 before the decision was handed down, and the government released them the next day.


  • Overview 1
  • Circumstances of capture 2
  • Procedural history 3
    • Original filings 3.1
    • Rasul v. Bush 3.2
    • Habib v. Bush 3.3
    • District Court's decision 3.4
    • Court of Appeals decision 3.5
    • Supreme Court 3.6
    • Release of Rasul and Iqbal 3.7
    • Court documents 3.8
  • Question of jurisdiction 4
  • Stevens' role 5
  • Oral arguments 6
    • Quotes 6.1
  • See also 7
  • References 8
  • Further reading 9
  • External links 10


In early 2002, the habeas corpus petitions, Rasul v. Bush and Habib v. Bush, challenging the U.S. government’s practice of holding foreign nationals in detention indefinitely who were captured in Afghanistan during the war against the Taliban regime and al-Qaida. The government had designated the detainees as enemy combatants and did not allow them access to counsel, the right to a trial, or knowledge of the charges against them. The United States Supreme Court, over the administration’s objections, agreed in November 2003 to hear the cases of the Guantánamo detainees, namely Rasul v Bush, which was consolidated with al Odah v. Bush (the latter represented twelve Kuwaiti men). The arguments were heard on April 20, 2004. In a ruling on June 28, 2004, the Court ruled that the habeas corpus statute, 28 U.S.C. § 2241, entitled the detainees to challenge the validity of their detention.

Circumstances of capture

The various plaintiffs were taken to Guantanamo Bay for different reasons, but were generally captured or arrested during the U.S. invasion of Afghanistan.

The US Military transferred Rasul and Asif Iqbal, both British citizens, and David Hicks, an Australian citizen, to Guantanamo Bay in December 2001. Each denied voluntarily joining any terrorist forces. As noted by the District Court, they did not deny having fought for the Taliban, but claimed that if they did take up arms, it was only when being attacked and in self-defense. Rasul and Iqbal say they were with the Taliban because they were taken captive. Hicks is silent on the matter in court filings, but his father, in filing the brief, said that he believed that his son had joined the Taliban forces.

The twelve Kuwaitis, combined in Al Odah v. United States, claimed that they were in Pakistan and Afghanistan giving humanitarian aid. They were seized by villagers seeking bounties and "sold" to the United States (US) forces. The US transferred them to Guantanamo Bay starting in January 2002.

Mamdouh Habib, the plaintiff in Habib v. Bush, was arrested by Pakistani authorities on October 5, 2001, two days before the fighting began.

Procedural history

Original filings

These cases were each filed in the United States District Court for the District of Columbia and the court decided them together, consolidating them under Rasul v. Bush. Each of the filings alleged that the government had not allowed the detainee to speak at all to friends, family or lawyers, and had not given him any hearing whatsoever on the question of whether he was an enemy combatant in the war.

Rasul v. Bush

Rasul v. Bush [1] was a petition for a writ of habeas corpus (release from unlawful imprisonment) filed on February 19, 2002 by 2 Australian citizens, and 12 petitioners of Kuwaitan citizenship. Their petition requested:

  • That they be released
  • That they be allowed to have private, un-monitored conversations with their attorneys
  • That interrogations cease until the trials were complete

Habib v. Bush

Mamdouh Habib, an Australian citizen, filed a suit [2] very similar to Rasul on June 10, 2002. The Court dismissed it, on the same grounds as the other two, on August 8.

District Court's decision

The US District Court dismissed the cases with prejudice on July 30, 2002, on the grounds that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. It first ruled that the Odah petitioners were in fact asking for habeas corpus, as they were "plainly challeng[ing] the legality of their custody." This meant that jurisdiction would be considered for both cases as though they were asking for release from prison.

Citing Johnson v. Eisentrager, 339 U.S. 763 (1950), in which the U.S. Supreme Court ruled that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison, the District Court ruled that U.S. courts have jurisdiction only in a territory where the U.S. has sovereignty. Because the treaty with Cuba regarding Guantanamo Bay stated that Cuba technically has "complete sovereignty", the court held Guantanamo Bay could not be considered a sovereign territory of the United States and therefore foreign nationals could not be given a trial in the U.S. The plaintiffs pointed out that the U.S. has all effective powers in the area.

Court of Appeals decision

The cases were appealed together on August 8, 2002, to the United States Court of Appeals for the District of Columbia Circuit. It affirmed the lower court's decision, saying that no U.S. court had jurisdiction over Guantanamo Bay. ...

Supreme Court

The case was appealed to the US Supreme Court on September 2, 2003, and heard on April 20, 2004.

Release of Rasul and Iqbal

On March 9, 2004, two years after they were first detained, the US released Rasul and Iqbal to the United Kingdom with no charges filed, along with three other British citizen detainees. The British government had been pressing the United States for the return of its citizens and legal residents. The next day, the UK government released all five men without charge.

The United States government announced that it planned to charge Hicks and Habib before a military commission. Habib was released in January 2005, after the Washington Post reported his extraordinary rendition from Pakistan to Egypt by the CIA soon after his arrest.[3] He was held and interrogated under torture in Egypt for five months before being returned to Pakistan, and then transferred to military custody and Guantanamo Bay.[4]

Court documents

Court documentsRasul et al. v. Bush et al.,Hague Justice Portal:

Question of jurisdiction

The sole question before the Supreme Court in this case is whether foreign nationals in Guantanamo Bay may invoke habeas corpus (wrongful detainment) at all. Either U.S. citizenship or court jurisdiction is necessary for this invocation, and since the detainees are not citizens, U.S. court jurisdiction over Guantanamo Bay was at issue. According to the U.S. treaty with Cuba over Guantanamo Bay, the U.S. has "complete jurisdiction" over the base, but Cuba has "ultimate sovereignty." The government alleges that the fact that the treaty says this implies that the courts have no jurisdiction; the detainees argue that regardless of what the treaty says, the U.S. has full legal control in the area and effective jurisdiction.

Stevens' role

Justice Stevens had a unique history with the key precedents cited in the opinion of the case. Much of the opinion of the lower court was built around the 1950 Eisentrager ruling, which was based on the holding in Ahrens v. Clark (1948) that petitioners invoking habeas corpus must direct their claim to the court that has jurisdiction where they are held. Since Eisentrager's German detainees were in China and no U.S. court holds jurisdiction there, they were held to be unable to file a habeas motion. But the later case of Braden v. 30th Judicial Circuit Court of Kentucky (1973), relaxed Ahrens' rule, thereby undercutting the logic used in Eisentrager. Neither party to the case argued this point to the court. It was made by Justice Stevens, who as a law clerk for Justice Rutledge had drafted his dissenting opinion in Ahrens, arguing that the court had jurisdiction where the ultimate custodians were located.

Stevens had kept track of the effect of the Ahrens ruling as it was relied upon in Eisentrager. In his later biography of Rutledge for a law review, he noted the dissenting opinion in Ahrens as an example of Rutledge's skill and care as a justice. It was with this inside knowledge of the history of the law surrounding the issues at question in Rasul, that Stevens crafted such a detailed opinion relying upon such obscure but relevant precedent.

Oral arguments

During the oral arguments the following points came up:

  • Many of the Justices' questions indicated a belief that Johnson v. Eisentrager was immaterial to the jurisdictional question at hand, while the government argued that it was material. Justice Stevens noted that the Ahrens v. Clark decision, the basis of the Eisentrager decision, had since been largely reversed in Braden (1973), and thus relevant parts of Eisentrager may no longer apply.
  • Justice Souter noted that the ability of a U.S. citizen to get a trial may necessarily imply that the court has jurisdiction in that geographic area, since jurisdiction is largely a geographic and sovereignty matter. Since the government had said it would not challenge 'habeas corpus' by a U.S. citizen in Guantanamo Bay, in Hamdi v. Rumsfeld (2004), this could establish jurisdiction at the base.
  • The court had concern that there is a gray area where certain types of cases would fall through the cracks, because only the U.S. military appeared to have jurisdiction. On the other hand, Justice Scalia noted, it may be possible, and better, for Congress to remedy that situation, as they have deliberative powers the court does not.


Justice Scalia

regarding the purpose of jurisdiction:

"The Constitution requires jurisdiction — the Constitution requires that an American citizen who has the protection of the Constitution have some manner of vindicating his rights under the Constitution."
Justice Breyer

on whether to deny jurisdiction to citizens outside the U.S.

"So what I'm thinking now, assuming that it's very hard to interpret Eisentrager, is that if we go with you, it has a virtue of clarity. There is a clear rule. Not a citizen outside the United States; you don't get your foot in the door. But against you is that same fact. It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."

Justice Scalia on whether the courts or Congress are better suited to rewrite laws:

"Can we hold hearings to determine the problems that are bothering you? I mean, we have to take your word for what the problems are. We can't call witnesses and see what the real problems are, can we, in creating this new, substantive rule that we're going to let the courts create? Congress could do all that, though, couldn't it? ...
If it wanted to change the habeas statute, it could make all sorts of refined modifications about issues that we know nothing whatever about because we have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts."

See also


  1. ^ The Center for Constitutional Rights
  2. ^ The Center for Constitutional Rights
  3. ^  
  4. ^ "Australians saw Habib tortured, says officer", Sydney Morning Herald, 13 February 2011, accessed 25 January 2011. Quote: "DAMNING evidence from an Egyptian intelligence officer that names an Australian official who witnessed the torture of Sydney man Mamdouh Habib in [Egypt] has been revealed as the trigger for a hushed-up government payout to Mr Habib and a high-level investigation."

Further reading

  • Martin, David A. (2005). "Offshore Detainees and the Role of Courts after Rasul v. Bush: The Underappreciated Virtues of Deferential Review". Boston College Third World Law Journal 25: 125.  
  • Osborn, Meredith B. (2005). "Rasul v. Bush: Federal Courts Have Jurisdiction over Habeas Challenges and Other Claims Brought by Guantanamo Detainees". Harvard Civil Rights-Civil Liberties Law Review 40: 265.  
  • Thai, Joseph (2006). : John Paul Stevens's Influence from World War II to the War on Terror"Rasul v. Bush"The Law Clerk Who Wrote (PDF). Virginia Law Review 92: 501.  
  • Wilke, Christiane (2005). "War v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts". Politics & Society 33 (4): 637–669.  

External links

  • and other casesRasul v. Bush, Center for Constitutional Rights website
  • Rasul v. Bush, Full text of Supreme Court decision, Findlaw
  • , Summary of case and Supreme Court decisionRasul v. Bush, Oyez
  • "Supreme Court Decision goes against Bush", CDI
  • Rasul v. BushBriefs and papers filed for
  • information about the filing of the brief, Center for Constitutional Rights
  • "Rasul v. Bush", commentary, Duke Law School]
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