Supreme Court Guantanamo Bay Cases, Habeas Corpus and Antonin Scalia

Special Report: The Guantanamo Bay Cases.

During his Supreme Court tenure from 1986 through 2016, Justice Antonin Scalia had much to say on a wide variety of issues. The views of Antonin Scalia on habeas corpus are explained here using six critical Supreme Court cases during the first few years of the “war on terror.”


The 1215 British Magna Carta or “Great Charter” placed the law paramount over the whims of royalty and established the “law of the land” — law to be applied to everybody. Habeas corpus was part of this document.

Habeas corpus is the famous Latin term meaning essentially “you have the body” or “show me the body.” A person being held or imprisoned without justification may file a “writ of habeas corpus” in court to demand a reason for detention or demand release.

The right was written into the US Constitution: “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.”

After the terror attacks of September 11, 2001, it became known that the Bush administration was holding detainees in a prison at Guantanamo Bay, Cuba. Prisoners were being held out of communication and without attorneys.This situation provided the most vigorous and important legal disputes about habeas corpus since the World War II era “Japanese internment cases.” Here are the six main cases.


There are six major Guantanamo Bay cases. Many were resolved by narrow majorities. The first three involved non-citizens detained at Guantanamo Bay (Gitmo). The next three involved American citizens. Scalia voted against court review in five of the six cases.

First, non-citizen suspects from the “war on terror” were sent to the US-controlled site at Guantanamo Bay (Gitmo), Cuba, without charges. George W. Bush deemed the land literally lawless: neither the US Constitution nor the laws of war applied to these “enemy combatants.” Because Cuba was the ultimate “sovereign” of Guantanamo Bay, the base was declared outside of court reach.

Scalia would have denied all independent review to Gitmo detainees. (Rasul v. Bush, 2004)

After the 9-11 attacks, a hearing process for detainees was created in a Defense Department Military Commission Order, which did not allow either full or independent review. Guantanamo Bay was employed mainly to house prisoners from the war in Afghanistan. They were held out of contact with the world, even their names undisclosed. One of the detainees, Shafiq Rasul, was a British citizen. His family was told by Britain that he was being held. Habeas corpus petitions were filed for detainees.

John Paul Stevens penned a 6-3 opinion saying that Gitmo detainees were allowed some kind of judicial review process. They could not be held indefinitely under existing federal law. Scalia dissented. He would have denied all review.

Supreme Court provided some court review where Scalia would have provided none. (Hamdan v. Rumsfeld, 2006)

Salim Hamdan was a Gitmo detainee. He said that he was the limousine driver for Osama Bin Laden. In 2005, with his military commission trial already underway and a petition for habeas corpus outstanding, Congress passed the Detainee Treatment Act (DTA). This law removed the power of most courts to hear habeas corpus cases and provided an internal review process. The Hamden case went to the Supreme Court.

John Paul Stevens penned a 5-3 opinion determining that the Supreme Court had the power hear the habeas corpus petition and that the military commissions process was inadequate under the law. First, the language in the DTA did not prevent the Supreme Court from hearing the petition. Since the law did not block the Court from hearing the case, he did not need to reach Constitutional issues. Second, the Defense Department Order did not comply with laws passed by Congress. Specifically, “the procedures that the President has adopted to try [Hamdan] violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.” He found that these commissions “violate[d] both the UCMJ [Uniform Code of Military Justice] and the Geneva Conventions.” Scalia dissented. He would have blocked all court review again.

Supreme Court finally invoked Constitutional habeas corpus, Scalia stood against it. (Boumediene v. Bush, 2008)

After the Rasul case above, the Bush administration created the formal process of Combatant Status Review Tribunals (CSRTs). These tribunals were designed to determine if prisoners were to be considered “enemy combatants.”

After the Hamdan case above, Congress passed the Military Commissions Act (MCA). “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus” for alien “enemy combatants.” This law forced the Court to finally deal with Constitutional issues.

As mentioned earlier, the Detainee Treatment Act (DTA) provided for limited reviews of the tribunals. Reviews were not allowed to look at the facts — only the process.

Anthony Kennedy wrote a 5-4 opinion indicating, first, that Gitmo detainees have the right to habeas corpus. The government could not “switch the Constitution on or off” by declaring an area out of reach of all courts. Second, the MCA, DTA and CSRT processes did not protect basic rights. Under these alphabet soup laws, there was no right to review secret evidence, hearsay evidence was admissible, attorney participation was minimal, and there was no objective review of decisions. So, after six years of detention, the Court finally insisted upon habeas corpus hearings for the prisoners.

Scalia dissented. He thought that Congress should be allowed to write laws determining where the Constitution applies and where it does not. He mentioned articles from The Washington Post indicating that freed detainees returned to the battle. He accepted that other branches of government could “strike an appropriate balance” between war needs and due process needs, and that the Court should not “second-guess” it.

This consolidated case also directly overturned Al Odah v. United States, a case decided by appeals Judge Merrick Garland who was nominated in 2016 by Barrack Obama for Supreme Court Justice.

Second, the next three cases involved citizens held in the United States. These reveal how Scalia and some others on the Supreme Court helped Bush administration tactics to maintain indefinite detention of American citizens.

Splintered Supreme Court delayed while indefinite citizen detention continued. (Hamdi v. Rumsfeld, 2004)

An American citizen was captured in Afghanistan, then transferred to a Navy brig on the US mainland. He was being held indefinitely without charges as an “enemy combatant.” He filed a habeas corpus petition.

Eight members of the Supreme Court agreed that George W. Bush could not hold a US citizen on US soil indefinitely without process, but no majority on the Court agreed on the details. This decision created delay and confusion. In this case only, Scalia accepted that some process was required.

Scalia and the Court sidestepped the question of indefinite detention. (Rumsfeld v. Padilla, 2004)

American citizen Jose Padilla was arrested in Chicago on a New York warrant and subpoena claiming that he was a “material witness” in bombing plots. He was transferred to New York and assigned an attorney.

The attorney filed to vacate the warrant. A conference was scheduled. The government suddenly withdrew the subpoena, labeled Padilla an “enemy combatant,” placed him under the control of Secretary of Defense Donald Rumsfeld, and sent him to South Carolina. Meanwhile, the press reported that Padilla was involved in a “dirty bomb” plot.

The scheduled conference went on anyway. The Jose Padilla attorney complained that she was no longer allowed contact with Padilla. She immediately filed a petition for habeas corpus in the New York court.

In a 5-4 Supreme Court opinion written by William Rehnquist, the Court dismissed the petition. Scalia signed on. The Court found that New York was not the proper location to file habeas corpus for a prisoner who was moved to South Carolina, and that Donald Rumsfeld was not the proper party to name in the petition. Essentially, the opinion said that due to technical difficulties, the case would have to go back to start over — buying time for the government.

Scalia and most of the Court avoided the Constitutional issue again. (Padilla v. Hanft, 2006)

After the Padilla case directly above failed to deal with indefinite detention, a new petition for habeas corpus was filed. The issue went to the Supreme Court again. This time, the government suddenly filed charges right before the Court was about to decide. The charges did not include the “dirty bomb” claim and the government had destroyed evidence. Because of this last-minute trick, the Court issued an order ending the case for mootness — there was no longer a live dispute to resolve. Scalia signed on.

One Ruth Bader Ginsburg dissented. She would have heard the case even after charges were filed because this “voluntary cessation” of indefinite detention would not stop the government from using this trick again. “Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.” The indefinite detention issue remained unresolved.

Incredibly, some detainees are still being held in Guantanamo Bay, including a few who were “cleared.” When the next Supreme Court Justice comes in to fill the seat of Antonin Scalia, the future of habeas corpus may be in the balance.

EDITOR’S NOTE: paragraphs in this article are italicized to fill in information between each case, as opposed to the usual practice of italicizing full-paragraph quotes.