By: Katherine Youssouf
Two months after September 11, 2001, President Bush, invoking his authority as Commander-in-Chief under Article II, Section 2 of the U.S. Constitution, issued a military order (M.O.) authorizing the establishment of military commissions at Guantanamo Bay, Cuba to try non-U.S. citizens who are current or former members of Al Qaida that have engaged in, aided or abetted, or conspired to commit acts of international terrorism. The M.O. specified that non-citizens triable before military commissions would have no recourse to appeal a verdict or obtain relief in the U.S. court system. The years to follow would see a constant tug-of-war between Congress and the courts on the issue of whether Guantanamo detainees were entitled to habeas corpus. However, in 2008, the Supreme Court in Boumediene v. Bush held that the constitutional right of habeas corpus extended to non-U.S. citizens detained in Guantanamo Bay.
Habeas corpus is a procedure by which a federal court reviews the legality of an individual’s detention. From a constitutional standpoint, it is the way courts “test the authority of one who deprives another of his liberty.” For this reason, habeas corpus serves as a critical check on the Executive Branch. It is therefore unsurprising that the Supreme Court has characterized the right to habeas corpus as “the best and only sufficient defense of personal freedom.” In the wake of the Court’s decision in Boumediene, most of the judicial activity concerning habeas corpus has occurred within the D.C. Circuit Court. Decisions by the D.C. Circuit have generally been favorable to the legal positions advanced by the U.S. Government. However, in a rare victory for Guantanamo detainees in 2014, the D.C. Circuit in Aamer v. Obama ruled that Guantanamo Bay detainees have the right to challenge their conditions of confinement through habeas corpus.
The case concerned three detainees who brought a challenge against the U.S. government’s force-feeding regime, which involved involuntary enteral feeding—a painful procedure by which the detainee is strapped to a chair and given a nutritional supplement through a tube inserted in the nose and down through the esophagus. Force-feeding has been the Pentagon’s “medical response” to detainees who engage in hunger strikes. However, the practice conflicts with international medical policy, which states that prisoners have a right to refuse nourishment. In Aamer, the petitioner-detainees had engaged in hunger strikes to protest their continued confinement at Guantanamo Bay. In its ruling, the D.C. Circuit ultimately upheld the district court’s decision to deny the detainees’ request for preliminary injunctive relief. However, the significance of the court’s ruling lies not in its denial of the preliminary injunction, but with its two-to-one decision that courts have subject-matter jurisdiction over detainees’ challenges to their conditions of confinement.
In Aamer, the detainees asserted that they had a constitutionally protected liberty interest in refusing unwanted medical treatment. They challenged their treatment by filing a writ of habeas corpus, which they argued must be available to challenge conditions of confinement where there is no alternative remedy. In its analysis on the scope of habeas corpus, the D.C. Circuit referenced a number of cases in which petitioning detainees had used the Great Writ to challenge the conditions of their confinement, including, but not limited to: Johnson v. Avery in which the Supreme Court permitted a federal prisoner to challenge a prison regulation prohibiting assistance from legal counsel by writ of habeas corpus; Wilwording v. Swenson, in which the Supreme Court held that a prisoner’s challenge to living conditions and disciplinary measures was “cognizable in federal habeas corpus”; and most importantly, Hudson v. Hardy, concerning a prisoner’s challenge to beatings and threats by prison officials, in which the D.C. Circuit recognized that habeas corpus tests the fact and form of detention. Ultimately, the D.C. Circuit found that those issues that lie at the “core of habeas corpus,” a concept established by the Supreme Court in Preiser v. Rodriguez, are those that may be challenged by detainees through habeas litigation. In finding for the detainees, the court held that habeas statute is a permissible legal approach to challenge conditions of confinement. This case is not only significant because it set a critical precedent for Guantanamo detainees to challenge the conditions of confinement—which for many years plagued news headlines with horror—but because it importantly illustrates how the writ of habeas corpus has evolved into a vehicle to vindicate individual rights.
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