1. Mr. Waxman's Interpretations of Habeas Corpus In Boumediene v. Bush
Course: Argumentation in Institutionalized Contexts
Instructor: dr. E.T. Feteris
University of Amsterdam
MA Communication and Information Studies: Discourse and Argumentation Studies
January 8, 2016
Author: Martina Mori
St. No. 11106409
minamartori@gmail.com
+39 3385995138
Word Count: 2053
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2. Mr. Waxman's Interpretations of Habeas Corpus in Boumediene v. Bush
Table of Contents:
1. Introduction................................................................................................................ p. 3
2. Summary and pragma-dialectical translation of Boumediene v. Bush....................... p. 4
3. Waxman's justifications of his interpretations of habeas corpus............................... p. 5
4. Conclusion................................................................................................................. p. 9
References................................................................................................................ p. 10
Appendix 1: Analytic reconstruction of Mr Waxman's complex argumentation...... p. 11
Supplement A: Group assignment 3.......................................................................... p. 13
Supplement B: Group assignment 4......................................................................... p. 15
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3. Mr. Waxman's Interpretations of Habeas Corpus in Boumediene v. Bush
1. Introduction
Boumediene v. Bush went to the most important court of law in the US as a case of
administrative law: the Supreme Court had to decide if the constitutional right of habeas
corpus (the right people have to hear from a judge the charges and evidence against them) had
been infringed for some Guantanamo detainees. Since in first and second instance the DC
Circuit Court judge decided that Boumediene, the petitioner, was not entitled to this right, the
ultimate argumentative goal of his attorney Mr. Seth P. Waxman was to persuade the Supreme
Court panel of nine justices of the necessary reversal of the previous legal decision. To
achieve this goal, he provided some interpretations of habeas corpus as to be applicable to the
petitioners, and he also gave legal justifications for his interpretations of this legal principle.
Taking Feteris' prototypical argumentative patterns in the justification of judicial
decisions as a starting point (Feteris, 2015a), it would be interesting to find out whether the
patterns Feteris identified for judges justifying their decisions can be implemented also in the
reconstruction of the argumentation given by Boumediene's attorney for defending his
interpretations of a legal rule. To discover it, in this paper I will answer my research question
“How does Waxman justify his interpretations of habeas corpus in order to refute the decision
of the DC Circuit Court?” by showing how these patterns can be used by Waxman to refute a
previous legal decision and to justify his interpretation of habeas corpus. The problem
underlying this research question is that Boumediene v. Bush is a hard case, where the dispute
is just about the meaning and the applicability of legal rules and principles (Feteris 1999), so
about the definition of the material starting points of the legal discussion, which coincide with
the legal rules to be interpreted and applied. This paper will focus only on the arguments
given by Waxman to convince the judges, who have the discretionary power to decide about
the applicability of the rules, that Boumediene has the right of habeas corpus. To answer the
research question, I will first give a short summary of the case highlighting the aspects and
theoretical insights which are relevant for the procedural perspective I adopted in my
reconstruction. Then, I will select and discuss two examples taken from the complex
(multiple, coordinative and subordinative) argumentation (in Appendix 1) used by Waxman,
giving a pragma-dialectical analysis of the patterns he implemented for justifying the
interpretations of habeas corpus. By doing this, I will reconstruct the interpretation methods
underlying the prototypical argumentative patterns of Waxman's appellate argumentation he
advanced in writing in the brief and performed orally in the legal discussion.
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4. 2. Summary and pragma-dialectical translation of Boumediene v. Bush
Lakhdar Boumediene was seized in Bosnia in 2001 with other five compatriots (called “The
Algerian Six”), classified by the US Government as “enemy combatant” and imprisoned,
without any trial, in the detention camp of the US Naval Base at Guantanamo Bay, located on
land that the US leased from Cuba, where the US have complete jurisdiction and control,
while Cuba maintains formal sovereignty over the territory.
Boumediene filed a petition for a writ of habeas corpus in 2004, but the United States
Court of Appeals for the District of Columbia Circuit (DC Circuit Court) dismissed his
application, stating that as an alien detained by the US Department of Defence at an overseas
military base he had neither the right of habeas corpus (Detainee Treatment Act, 2005), nor
the right to a trial before a US civil court, but only to a cursory hearing before a military panel
(Military Commissions Act, 2006). The MCA was judged constitutional under the Suspension
Clause of the US Constitution (Art. 1, Sec. 9) which includes habeas corpus: “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”. In short, the DC Circuit Court held that constitutional rights
like habeas corpus do not apply to aliens who are not “located within sovereign United States
territory”, that is to say, within the US geographic borders.
However, in 2004 the US Supreme Court had already held in Rasul v. Bush that the US
federal courts have jurisdiction over the wrongfully imprisonment of non-US citizens at
Guantanamo Bay, and in 2007 also decided to grant certiorari to Boumediene. The five-justice
majority of the Supreme Court decided that the procedures in the DTA were not adequate
substitutes for the habeas corpus, and that the MCA was operating as an unconstitutional
suspension of the writ. Due to the fact that the US have de facto sovereignty over
Guantanamo Bay, they ruled that the detainees are entitled to constitutional rights (Habeas
Corpus in the Suspension Clause, and Due Process in the Fifth Amendment).
To translate the Boumediene v. Bush case in terms of a pragma-dialectical critical
discussion, we can say that Waxman is the protagonist of the procedural standpoint “The
decision of the DC Circuit Court should be reversed”, and he acts at the same time as an
antagonist of the DC Circuit Court's decision and of the US Government's substantial
standpoint “The petitioners are not entitled to habeas corpus”. Therefore, there is a mixed
difference of opinion between Boumediene and Bush, and so between their attorneys, about
the legitimacy of the lower court's decision, which in turn is caused by a mixed difference of
opinion between the parties about the applicability of habeas corpus rights to the petitioners.
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5. This dispute frames Waxman's institutional point of basing his argumentation in defence of
the petitioners on the refutation of the previous legal decision, so that the rationale for my
reconstruction for the argumentative analysis is based on a procedural perspective.
This perspective also anticipates why Waxman's (counter)argumentative patterns could be
prototypical of appellate argumentation, an activity type very similar to adjudication, as in
both the judges act as the third party who has to settle the legal dispute, and where the
discussion necessarily involves previous legal decisions.
Moreover, it is important to notice that this case took place in the context of the American
Common Law system, which is very different from the Dutch Civil Law system that is
discussed by Feteris; the common law is mainly based on previous cases, this giving great
importance to the US courts' interpretations and decisions.
To summarize, this legal case can be reconstructed as a critical discussion which is aimed at
resolving multiple differences of opinion among numerous participants, who adopt either
opposite positions (mixed difference of opinion between the petitioner and the respondent and
between the attorneys representing them), or a critical attitude (nonmixed differences of
opinion between the parties' attorneys and the judges).
The interpretations of material rules can be reconstructed as argumentative structures,
which are implemented in prototypical argumentative patterns with specific interpretation
methods functioning as justification, as I am going to show in the next section.
3. Waxman's justifications of his interpretations of habeas corpus
As pointed out by Schuetz (2011), when attorneys are interpreting legal principles they want
to reach intersubjective agreement about the dialectical standard of reasonableness with their
clients. In this case, Waxman also seeks a mutual agreement on the reasonableness of his
interpretations of habeas corpus with the panel of judges, to convince them that it has to be
interpreted as applicable to alien Guantanamo detainees. By justifying his interpretations of
habeas corpus, which reflect his liberal democratic point of view, Waxman tries to meet the
judges' points of view, that are linked to their legal philosophies and political allegiances. So,
when he justifies his interpretations he wants to anticipate the judges' critical doubts, which
take the form of questions during the oral argument in which they act as institutional
antagonists. He knows that the acceptability of his refutation of the DC Circuit decision will
be evaluated by the judges according to their legal philosophies. Probably, Waxman's
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6. interpretations and justifications have more possibilities to meet the liberal view of legal
realism (position considering situational circumstances) of Justice Anthony Kennedy, than the
more conservative view of legal pragmatism (position maintaining the separation of powers)
of Chief Justice John G. Roberts. We can then hypothesize that the latter has a more critical
attitude toward Waxman's arguments, and that he agreed with the DC Circuit Court's decision
on the rival interpretation of habeas corpus as not applicable to Boumediene, and also that he
took a similar position in Rasul v. Bush, which is used by Waxman as a precedent to justify his
interpretation of the writ. As I am going to show, Waxman wants to anticipate judges' critical
reactions to his interpretations of habeas corpus by justifying them with a specific
interpretation method, like the judges do for their argumentation in a hard case in which they
give an interpretation of a legal rule (Feteris, 2015a). To illustrate how Feteris' prototypical
argumentative pattern (see Fig. 1) can be implemented also in Waxman's refutation of the DC
Circuit Court decision when he justifies his interpretations of habeas corpus by referring to a
specific interpretation method, I will use two adjacent examples from the analytic
reconstruction of the complex argumentative structure (see Appendix 1 for respective colours)
put forward by Waxman. I reconstructed Waxman's argumentation supporting the standpoint
“The decision of the DC Circuit Court should be reversed” (1) as a multiple structure with
three main arguments, among which I will analyse “The petitioners are entitled to be
protected by habeas corpus” (1.1) and the relevant interpretations and justifications.
1 y standpoint (legal claim)
↑
1.1 x1, x2 legal qualification of the facts & 1.1' if x then y bridging argument
(conditions required for applying (formulation of the legal rule in interpretation R')
the legal rule as interpreted in 1.1')
↑
1.1'.1 (justification of the interpretation R')
Figure 1: Schematic representation of Feteris' prototypical pattern in the interpretation of a legal rule by a court
In this hard case there is a meta-discussion on the legal qualifications of the facts (1.1), which
results from different interpretations of the legal rule in the bridging argument (1.1'). The
interpretation is justified by referring to a specific interpretation method in the subordinate
argument (1.1'.1). This pattern can also be implement to reconstruct the following examples.
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7. Example 1: teleological method to justify interpretation R'
1 (standpoint 1)
The decision of the DC Circuit Court should be reversed
↑
1.1 (legal qualification of the facts) & 1.1' (formulation of the rule in interpretation R')
The petitioners are entitled to If the petitioners are entitled to habeas corpus,
habeas corpus (1.1) the DC Circuit decision should be reversed (1.1')
↑
1.1'.1 (justification of the interpretation R')
The principal guarantee of habeas corpus
through the centuries has been the remedy of
speedy release for somebody who is unlawfully
being held in executive detention (1.1'.1)
Figure 2: Interpretation of a legal rule using the teleological method to justify interpretation R'
In this first example the interpretation of the right of habeas corpus included in the Suspension
Clause is justified by using the teleological method of interpretation, as Waxman refers to the
goal or purpose of the rule. In fact, he refers to the main guarantee of habeas corpus in the
common law tradition over the past centuries: protecting people against unlawful detention.
Example 2: historical method and use of a precedent to justify interpretation R'
1 (main argument 1.1)
The petitioners are entitled to habeas corpus
↑
1.1 (legal qualification of the facts) & 1.1' (formulation of the rule in interpretation R')
The petitioners are detained in a If the petitioners are alien citizens detained
territory which is de facto under in US territory, they are entitled to
the sovereign control of US, habeas corpus (1.1.1')
and the habeas corpus applies to all
(US and non-US) citizens detained
in US territory (1.1.1) ↑
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8. ↑
1.1'.1 (justification of the interpretation R')
As Rasul explained, the writ in 1789 was not
limited to formally sovereign territory or to
the sovereign’s own citizens (1.1.1'.1)
Figure 3: Interpretation of a legal rule using the historical method and a precedent to justify interpretation R'
In this second example, to justify his interpretation of habeas corpus as applicable to the
petitioners (1.1'), Waxman selects the previous case Rasul v. Bush, a precedent which supports
his historical interpretation. The historical interpretation method refers to the meaning
intended by the legislator, and Waxman uses it for habeas corpus, referring to the meaning of
the Great Writ as intended by the Framers who wrote it in 1789, stating that it was not limited
to formally sovereign territories (1.1'1), contrary to what the DC Circuit Court held.
We can consider the use of a precedent as symptomatic argumentation, because a previous
decision is presented as characteristic, as a sign supporting the main argument (1) that
petitioner have the right to habeas corpus, and as a symptom of the intention of the legislator.
An integrated representation of the two analysed examples in terms of argumentative
pattern is schematically represented below, according to the overall structure (Appendix 1):
1 (standpoint)
The decision of the DC Circuit Court should be reversed
↑
1.1 (legal qualification of the facts) & 1.1' (formulation of the rule in interpretation R')
The petitioners are entitled to If the petitioners are entitled to habeas corpus,
habeas corpus the DC Circuit decision should be reversed
↑
↑ 1.1'.1 (justification of the interpretation R')
The principal guarantee of habeas corpus
through the centuries has been the remedy of
↑ speedy release for somebody who is unlawfully
being held in executive detention (1.1'.1)
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9. ↑
1.1.1 (legal qualification of the facts) & 1.1.1' (formulation of the rule in interpretation R')
The petitioners are detained in a If the petitioners are alien citizens detained
territory which is de facto under in US territory, they are entitled to
the sovereign control of US, habeas corpus
and the habeas corpus applies to all
(US and non-US) citizens detained ↑
in US territory 1.1.1'.1 (justification of the interpretation R')
As Rasul explained, the writ in 1789 was not
limited to formally sovereign territory or to
the sovereign’s own citizens
Figure 4: Integrated schematic representation of the argumentative pattern used for the two analysed examples
4. Conclusion
The purpose of this paper was to answer the research question: “How does Waxman justify
his interpretations of habeas corpus in order to refute the decision of the DC Circuit
Court?”
From the analysis of the two examples, I can answer that the argumentation given by Waxman
to justify his interpretations of habeas corpus as applicable to Boumediene in order to refute
the decision of the DC Circuit Court can be reconstructed by implementing the same
prototypical argumentative pattern Feteris (2015a) identified for the argumentation given by
the court in a hard case to justify their decision by giving an interpretation of a legal rule.
In addition, I found that Waxman uses the teleological and the historical interpretation
methods, the latter supported by the Rasul precedent, for justifying his interpretations of
habeas corpus, with the ultimate goal of the argumentative activity of appellate argumentation
of refuting the legal decision of a lower court and accomplish the institutional point, as an
attorney, of anticipating the judges' critical questions, and, more importantly, of convincing
the US Supreme Court of the applicability of habeas corpus to the petitioners in the
Boumediene v. Bush case.
My suggestion for further research would be to investigate whether also the linguistic
method and the systematic one can be used to justify an interpretation of a legal principle in a
hard case, by implemented the same prototypical argumentative pattern.
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10. References
Boumediene v. Bush, 553 U.S. 723 (2008) Justia U.S. Supreme Court Center
from https://supreme.justia.com/cases/federal/us/553/723/
Brief for the Boumediene Petitioners. No. 06-1195.
Feteris, E.T. (1999). The pragma-dialectical theory of legal argumentation in the context of a
critical discussion. In: E.T. Feteris, Fundamentals of legal argumentation, Chapter 11.
Dordrecht: Kluwer, pp. 163-188.
Feteris, E.T. (2012). The role of the judge in legal proceedings: A pragma-dialectical analysis.
Journal of Argumentation in Context, Vol. 1, no. 2, pp. 234-252.
Feteris, E.T. (2015a). Prototypical argumentative patterns in the justification of judicial
decisions. A pragma-dialectical perspective. ECA Lisbon (To be published)
Schuetz, J. (2011). Strategic maneuvering and appellate argumentation in Boumediene v.
Bush. Cogency, Vol. 3, no. 2, pp. 147-166.
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11. Appendix 1
Analytic reconstruction of Mr Waxman's complex argumentation
1 The decision of the DC Circuit Court should be reversed
1.1 The petitioners are entitled to habeas corpus The petitioners are entitled to habeas corpus
1.1' If the petitioners are entitled to habeas corpus, the DC Circuit decision should be
reversed
1.1'.1 The principal guarantee of habeas corpus through the centuries has been the
remedy of speedy release for somebody who is unlawfully being held in
executive detention
1.1.1 The petitioners are detained in a territory which is de facto under the sovereign
control of US, and the habeas corpus applies to all (US and non-US) citizens
detained in US territory
1.1.1' If the petitioners are alien citizens detained in US territory, they are entitled to habeas
corpus
1.1.1'.1 As Rasul v. Bush explained, the writ in 1789 was not limited to formally sovereign
territories or to the sovereign's own citizens
1.1.1.1The US exercises “complete jurisdiction and control over this base”
1.2a The petitioners are entitled to due process rights under the Fifth Amendment
1.2b Petitioners have not been protected by due process under the Fifth Amendment
1.2b.1a Petitioners are detained indefinitely without a fair hearing before a civilian court
1.2b.1b The government failed to show any lawful basis for petitioners' imprisonment
1.2b.1c.1a No act of Congress authorizes indefinite military detention based on the
government's expansive definition of “enemy combatant”
1.2b.1c.1b The government relies on CSRT determinations that the petitioners were
“enemy combatants” which were not authorized by the AUMF
1.2b.1c.1c Contrary to the government's assertion, the AUMF does not authorize the
detention of civilian citizens of friendly nations who have not directly
participated in 9/11 attacks
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12. 1.3 The MCA does not validly strip federal courts' jurisdiction over pending
habeas petitions filed by foreign citizens imprisoned indefinitely at
Guantanamo Bay
1.3.1 The MCA purported repeal of habeas corpus for Guantanamo detainees is an
unconstitutional suspension of the writ contained in the Suspension Clause
1.3.1.1 Review of CSRT determinations under the DTA procedures does not
provide the essential protections of the writ as it existed in 1789
1.3.1.1.1a The DTA prevents detainees classified as “enemy combatants” from placing
their own evidence before the reviewing court
1.3.1.1.1b The DTA prevents the court from viewing the evidence neutrally
Legenda:
Example 1
Example 2
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13. Marie-Claire Bovet 10020314 marieclairebovet@icloud.com
Martina Mori 11106409 minamartori@gmail.com
Laura Vrijsen 10252703 laura.vrijsen@hotmail.com
ASSIGNMENT 3: GROUP I
Group analysis of the standpoints and differences of opinion in Boumediene v. Bush
The significance of the Boumediene v. Bush case is that it guaranteed Habeas Corpus
rights to detainees of the Guantanamo Bay detainment camp. Also, resulting from the Court's
decision, some parts of the DTA, CRST, and MCA (section 7) were declared unconstitutional.
The most important legal regulations about whose applicability the parties' opinions
differ are: Military Commission Act, Combatant Status Review Tribunal, Detainee Treatment
Act, Habeas Corpus right contained in the Suspension Clause (article 1 section 9 of the U.S.
Constitution).
The participants in the Boumediene v. Bush discussion are Seth P. Waxman on behalf
of the petitioners, Paul D. Clement representing the Bush administration, and the nine judges
of the Supreme Court. Waxman is the protagonist of the positive standpoint that the
Guantanamo Bay detainees have the right to Habeas Corpus. Clement is the antagonist of this
standpoint, so the protagonist of the negative standpoint that the Guantanamo Bay detainees
do not have the right to be protected by Habeas Corpus. Waxman is the antagonist of this
negative standpoint. This is, thus, a mixed difference of opinion with regards to each other.
The main difference of opinion is about the right of the Guantanamo Bay detainees of
submitting a writ of HC to US federal courts. With respect to this standpoint, there are
substandpoints about the interpretation of MCA as a violation of the Suspension Clause.
The other substandpoint is about considering the DTA as an adequate substitute for the right
of Habeas Corpus. There is a complex difference of opinion in a complex discussion with
many participants. These differences of opinion are illustrated in figure 1. Both Waxman and
Clement have a non-mixed difference of opinion with the judges of the Supreme Court, as
these judges show critical doubts with regards to both standpoints and act as institutional
antagonists. Their doubts are externalized in form of questions to the attorneys during the
discussion, and in the case of Mr. Waxman, usually the questions posed by Chief Justice
Roberts and Justice Scalia show a more critical attitude toward his standpoints compared to
the ones posed by Justice Kennedy and Justice Souter. It becomes evident in the concluding
stage that there is an implicit mixed difference of opinion among the judges, which was
anticipated already in the difference in attitude in the question-posing process during the
argumentation stage.
The court who decided in first instance was the District of Columbia Circuit.
The court in second instance was also the DC Circuit. In the third and final instance the case
was appealed to the Chief Justice Roberts' Supreme Court.
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14. Fig. 1: The schematic representation of the differences of opinion in Boumediene v. Bush
14

15. Marie-Claire Bovet 10020314 marieclairebovet@icloud.com
Martina Mori 11106409 minamartori@gmail.com
Laura Vrijsen 10252703 laura.vrijsen@hotmail.com
ASSIGNMENT 4: GROUP I
Pragma-dialectical analysis of the argumentation given by the Boumediene's attorney
Mr. Seth P. Waxman
General overview of the complex argumentation structure:
Boumediene v. Bush is a hard case (legal rules are disputed) of Administrative Law in the
context of the US Common Law system. We noticed that the parties, because they don't share
the same different starting points (material rules), gave different interpretations of laws by
making moral considerations that don't belong directly to the legal sphere but are used as legal
justifications.
As a source for our analysis we utilized the main points of the brief presented by the attorneys
of the Petitioners (the Algerian Six), using the oral discussion only for some clarifications.
In our view, although different interpretations could be considered, there is one main
argument (1.1) supporting the standpoint (1), which in turn is supported by three multiple
complex arguments. We decided for this analytical overview because we consider each of the
three mentioned arguments as conclusively sufficient for the defense of the main argument.
1 The judgment of the court of appeals should be reversed
1.1 Petitioners' imprisonment is unlawful
1.1.1a Guantanamo detainees have the right to be protected by the US Constitution
1.1.1b Petitioners' right to be protected by US Constitution has not been preserved
1.1.1b.1a Petitioners have not been protected by the Suspension Clause
1.1.1b.1b Guantanamo detainees are entitled to habeas included in the Suspension Clause
1.1.1b.1b.1 The Suspension Clause applies to all (US and non-US) citizens detained in US
territory
1.1.1b.1b.1.1a Guantanamo is de facto a territory under the sovereign control of US
1.1.1b.1b.1.1b As Rasul v. Bush explained, the writ in 1789 was not limited to formally
sovereign territories
1.1.1b.2a Guantanamo detainees are entitled to due process under the Fifth Amendment
1.1.1b.2b Petitioners have not been protected by due process under the Fifth Amendment
1.1.1b.2b.1a Petitioners are detained indefinitely without a fair hearing before a civilian court
1.1.1b.2b.1b The government failed to show any lawful basis for petitioners' imprisonment
15

16. 1.1.2 The MCA purported repeal of habeas corpus in unconstitutional
1.1.2.1a The MCA does not provide an adequate substitute for the Suspension Clause
1.1.2.1a.1 The MCA does not validly strip federal court jurisdiction over habeas petitions filed
by foreign citizens imprisoned indefinitely at Guantanamo
1.1.2.1b The review of CSRT determinations under the DTA does not provide the essential
protections of the writ as it existed in 1789
1.1.2.1b.1a The DTA prevents detainees classified as “enemy combatants” from placing their
own evidence before the reviewing court
1.1.2.1b.1b The DTA prevents the court from viewing the evidence neutrally
1.1.3 The government has failed to show any lawful basis for the petitioners' imprisonment
1.1.3.1a The government relies on CSRT determinations that the petitioners were “enemy
combatants” which were not authorized by the AUMF.
1.1.3.1b No act of Congress authorizes indefinite military detention based on the
government's expansive definition of “enemy combatant”.
1.1.3.1c Contrary to the government's assertion, the AUMF does not authorize the detention
of civilian citizens of friendly nations who have not directly participated in 9/11 attacks.
General overview of the main types of arguments:
We hold that in the Boumediene v. Bush case there are the following Argument Schemes:
Arguments based on a causal relation with respect to main argument 1.1:
1.1.1a Guantanamo detainees have the right to be protected by the US Constitution
1.1.1b Petitioners' right to be protected by US Constitution has not been preserved
1.1.2 The MCA purported repeal of habeas corpus in unconstitutional
1.1.3 The government has failed to show any lawful basis for the petitioners'
imprisonment
Arguments based on a symptomatic relation:
1.1.1b.1b.1.1b As Rasul v. Bush explained, the writ in 1789 was not limited to formally
sovereign territories
has a symptomatic relation (argument by example) with the argument 1.1.1b.1b.1
1.1.3.1b No act of Congress authorizes indefinite military detention based on the
government's expansive definition of “enemy combatant”.
has a symptomatic relation (argument by definition) with the argument in 1.1.3
16

17. Overview of the relevant rules and regulations:
1. The Suspension Clause of US Constitution (Article 1, Section 9, Clause 2) provides:
“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in case of
rebellion or invasion the public safety may require it.”
2. The Fifth Amendment to the Constitution provides (in relevant part): “[N]or shall any
person be deprived of life, liberty, or property, without due process of law.”
3. AUMF: Authorization for the use of Military Force (2001). It authorizes the use of US
Army's all “necessary and appropriate force” against those the President determined to be
responsible for the attacks on 9/11 2001.
4. DTA: Detainee Treatment Act (2005). It contains provisions relating to treatment of
persons in custody of the Department of Defense (including Guantanamo detainees) which are
not considered real protections against torture by military personnel. It provides that detainees
can be held and interrogated without having legal counsel, and without knowing what
evidence the government has against them.
5. MCA: Military Commission Act (2006). It allowed the President to designate people as
“enemy combatants” and it authorized trials by military commission (only a cursory hearing
before military personnel.
6. CSRT: Combatant Status Review Tribunal (2004). The Department of Defense created the
CSRT process in the wake of Hamdi v. Rumsfeld (2004), to “review” the military's
determination that prisoners at Guantanamo were “enemy combatants”. However, the CSRT
procedures do not incorporate the definition of “enemy combatant” that the government had
advanced in Hamdi v. Rumsfeld and that the Supreme Court described as a category of
persons whom the government was authorized to detain, but stated in general that prisoners at
Guantanamo Bay were “enemy combatants”. Petitioners were also prevented from offering
documentary or testimonial evidence unless the CSRT panel concluded that it was
“reasonably available” - a standard that, in practice, excluded much accessible evidence.
Other relevant observations:
The court of appeals dismissed the Boumediene v. Bush case for lack of jurisdiction: The
majority concluded that the MCA operated to strip federal jurisdiction over Guantanamo
detainees' habeas petitions, and that the MCA did not offend the suspension clause because, in
its view, habeas corpus as of 1789 did not extend to “aliens outside the sovereign’s territory.”
The majority also held, relying on Johnson v. Eisentrager (1950) that Petitioners could not
invoke the Suspension Clause because the Constitution does not confer rights on “aliens with-
out presence or property within the United States.”
17

18. In Hamdi v. Rumsfeld (2004) the US Supreme Court recognized the power of the government
to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S.
citizens must have the rights of due process, and the ability to challenge their enemy
combatant status before an impartial authority.
In Rasul v. Bush (2004) the US Supreme Court established that the US Court system has the
authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay
were wrongfully imprisoned.
18