# Boumediene v. Bush **553 U.S. 723 · decided June 12, 2008 · 5–4 · opinion by [[Anthony Kennedy]]** The Supreme Court held that the **constitutional** privilege of habeas corpus reaches noncitizens held as enemy combatants at Guantánamo Bay. It struck down § 7 of the 2006 [[Military Commissions Act]], which had stripped the courts of jurisdiction over their petitions, as an unconstitutional suspension of the writ. Congress had not provided an adequate substitute: the limited D.C. Circuit review under the [[Detainee Treatment Act]] did not let a detainee challenge the factual basis for his detention or win release. ## The lineup - **Majority:** Kennedy, joined by Stevens, Souter, Ginsburg and Breyer. Souter also wrote a concurrence, joined by Ginsburg and Breyer. - **Dissents:** [[John Roberts]] (on the adequacy of the DTA process) and [[Antonin Scalia]] (on the writ's reach). Each was joined by the other three dissenters, so Roberts, Scalia, Thomas and Alito signed both. Scalia's dissent predicted the decision "will almost certainly cause more Americans to be killed." ## The test The government's argument was formal: Cuba, not the United States, holds sovereignty over Guantánamo, so the Constitution stops at the fence line. Kennedy rejected that for a **functional** inquiry. The writ's reach depends on: 1. "the detainees' citizenship and status and the adequacy of the process through which that status was determined" 2. "the nature of the sites where apprehension and then detention took place" 3. "the practical obstacles inherent in resolving the prisoner's entitlement to the writ" He gave the reason in one line: the political branches cannot "switch the Constitution on or off at will" by choosing where to hold someone. ## The cycle it completed Boumediene finished a four-round fight between the Court and Congress: 1. **[[Rasul v. Bush]] (2004)** found *statutory* habeas jurisdiction over Guantánamo. 2. Congress answered with the DTA (2005). 3. **[[Hamdan v. Rumsfeld]] (2006)** read the DTA narrowly, and Congress answered with the MCA. 4. With the statute closed off, the Court moved the question to the [[Suspension Clause]] itself, where Congress cannot override it. ## The limits that followed The right proved narrower in practice than in principle: - **Kiyemba v. Obama** (D.C. Cir. 2009) held that habeas courts cannot order a cleared detainee released into the United States. - **Al Maqaleh v. Gates** (D.C. Cir. 2010) applied the Boumediene factors and held that the writ does **not** reach Bagram, an active war zone. Lakhdar Boumediene himself, an Algerian arrested in Bosnia, was ordered released by Judge Richard Leon in November 2008 and transferred to France in May 2009. ## Why it matters in 2025–26 Boumediene is the outer marker every second-term detention fight is measured against: - **Suspension talk.** On May 9, 2025, [[Stephen Miller]] said suspending habeas corpus was "an option we're actively looking at." Under Boumediene, a suspension that is not tied to "Rebellion or Invasion," or that is done without an adequate substitute, is precisely what the Court refused to allow. - **Habeas as the channel.** In **[[J.G.G. v. Trump]]** (Apr 7, 2025) the Court held that [[Alien Enemies Act]] challenges must be brought in habeas, in the district of confinement. In **A.A.R.P. v. Trump** (May 16, 2025) it added that detainees must get notice meaningful enough to file. Both treat the writ as the guaranteed floor that Boumediene built. - **Guantánamo again.** Roughly 500 migrants were held at [[Guantanamo]] between February and June 2025. On Dec 5, 2025, Judge [[Sparkle Sooknanan]] denied the government's motion to dismiss the ACLU's challenge. - **Offshore custody.** On Dec 23, 2025, Judge [[James Boasberg]] held that the roughly 137 Venezuelans sent to El Salvador's CECOT prison were denied due process, and ordered the government to facilitate their return or give them hearings. No 2026 ruling directly applying or extending Boumediene has been found as of Sept 30. The core fight is the one Kennedy named: whether moving a person offshore can move them beyond the courts. ## See also - [[Habeas Corpus Timeline]] · [[Habeas Corpus]] · [[Suspension Clause]] · [[Guantanamo]] - [[Rasul v. Bush]] · [[Hamdi v. Rumsfeld]] · [[Hamdan v. Rumsfeld]] · [[Johnson v. Eisentrager]] - [[Military Commissions Act]] · [[Detainee Treatment Act]] · [[War on Terror Timeline]] - [[J.G.G. v. Trump]] · [[Alien Enemies Act]] · [[Stephen Miller]] · [[James Boasberg]]