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Recent Supreme Court Decisions: Enemy Combatants And Guantanamo Detainees

by Christina B. LaBrie

On June 28, 2004, the US Supreme Court issued three decisions with important implications for both US citizens and non-citizens being detained by the US government. In Rumsfeld v. Padilla, the Court addressed the claim of Jose Padilla, a US citizen challenging his detention as an enemy combatant. In Hamdi v. Rumsfeld, the Court dealt with the claim of a citizen jailed at the Guantanamo Naval Base in Cuba. The third case, Rasul v. Bush, involved the right of non-citizens detained at Guantanamo to challenge their detention in US courts.


Jose Padilla is a US citizen who was arrested and held by the US government as an “enemy combatant.” Padilla filed a habeas corpus petition in the US District Court for the Southern District of New York challenging his detention. At the time of filing, Padilla had been moved out of New York and was being held on a naval brig in South Carolina.

The Court ruled that Padilla’s habeas petition had been brought in the wrong court. The majority opinion held that the only proper respondent to a traditional habeas petition challenging “present physical confinement” is the actual custodian of the facility where the individual is detained. For Padilla, the actual custodian was the commanding officer in charge of the naval brig, and thus the petition could not be brought in the Southern District of New York. Because the Court determined that Padilla did not file his petition in the proper court, it did not reach the issue of whether the president possessed the authority to detain Padilla militarily.

The Court’s decision could lead to the dismissal of many pending habeas petitions filed on behalf of non-citizens. However, the Court left open the issue of whether the Attorney General is a proper respondent to a habeas petition filed by a non-citizen “detained pending deportation.”1 It should be noted that the concurring opinion by Justices Kennedy and O’Connor makes clear that the rules regarding the proper respondent are not based on subject matter jurisdiction and thus can be waived by the government.

Many arguments can be made to differentiate the Padilla case from cases filed by non-citizens challenging final orders of removal. The American Immigration Law Foundation has put out a practice advisory setting forth the possible arguments in response to the application of the Padilla decision to pending habeas petitions challenging orders of removal. The practice advisory is available at


In Hamdi v. Rumsfeld, the Supreme Court held that US citizens detained as “enemy combatants” must be given the ability to challenge their detention “before a neutral decision maker.” The case involved a US citizen detained on a battlefield in Afghanistan and later taken to Guantanamo. The government asserted the right to hold Hamdi indefinitely, or at least until the threat of terrorism was reduced.

The justices did not present a unified rationale for the decision, but clearly expressed the sentiment that “a state of war is not a blank check for the president.” The controlling opinion said that a citizen designated as an enemy combatant is entitled to “notice of the factual basis for his classification” and a “fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.”

The decision addresses the conflict between the executive and judicial branches of government. The Court took issue with the government’s position that the determination of “enemy combatant” status can be made by the executive branch without any outside review of that decision. The justices emphasized the importance of “striking the proper constitutional balance,” particularly during times of ongoing combat. Reflecting the gravity of the decision, the Court stated the following, which is likely to be widely quoted for many years to come:

“It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”


This case involves the claims of two non-citizens detained at Guantanamo. In Rasul, the Court was faced with the question of “whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.” The Court ruled that federal judges have jurisdiction to consider petitions for writs of habeas corpus filed by detained non-citizens who argue that they are being held unlawfully.

The Court found the right to challenge detention exists, even where the US does not exercise “ultimate sovereignty” over the territory in which the individuals are held. The decision focused on the district court’s jurisdiction over the respondents to the habeas petitions, not to location of the petitioners. The majority also clearly stated that citizens and non-citizens are equally entitled to invoke the federal courts’ authority to hear habeas corpus petitions.

The Court reversed the lower court’s decision and remanded the cases to the district court for consideration of the habeas petitions. The district court will then be faced with the task of determining the legality of the detention of the non-citizens at Guantanamo.

About The Author

Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.