Boumediene v. Bush / Al Odah v. United States Historic Case

At a Glance

Current Status 

The detainees won in the Supreme Court, and individual habeas cases were allowed to proceed in the district court.

Date Filed: 

February 20, 2007

Co-Counsel 

Thomas B. Wilner, Neil H. Koslowe, Amanda E. Shafer, Sheri L. Shepherd, David J. Cynamon, Matthew J. Maclean, Osman Handoo, George Brent Mickum IV, Joseph Margulies, John J. Gibbons, Lawrence S. Lustberg, Mark S. Sullivan, Christopher G. Karagheuzoff, Joshua Colangelo-Bryan, David H. Remes, Marc D. Falkoff, Clive Stafford Smith, Scott Sullivan, Derek Jinks, Erwin Chemerinsky, Stephen Yagman

Case Description 

Boumediene v. Bush is the name given to a consolidation of cases brought to challenge new attempts to prevent the men detained at Guantanamo from exercising the rights the Supreme Court had recognized in CCR’s landmark case, Rasul v. Bush.  On June 28, 2004, the U.S. Supreme Court had held that the nearly 600 men then imprisoned at Guantánamo had the right to challenge their detention and conditions of confinement. In response, the government established the Combatant Status Review Tribunals (CSRTs) for the purpose of determining whether a detainee had properly been designated as an “enemy combatant,” (itself a term with no proper legal meaning designed in an attempt to circumvent the legal protections for  prisoners of war). Congress then enacted the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which attempted to strip classes of non-citizens of their rights to bring certain challenges in federal court.

The consolidated cases Boumediene v. Bush, brought by co-counsel, and Al Odah v. United States, brought by CCR with co-counsel, challenged all of these attempts to undermine the Supreme Court’s ruling in Rasul. We sought Supreme Court review, but on April 2, 2007, the Court declined to hear the case. On June 29, 2007, in a highly unusual action, the Supreme Court reversed its decision and agreed to hear the case in its 2007-2008 term the following fall.

Showing how much the conversation had shifted from the early days of Rasul, over 20 amicus briefs supporting the rights of the detained men were filed in the case— from retired military officers, retired federal judges, former U.S. diplomats, a sitting Republican U.S. Senator, Canadian, British and European Parliamentarians, the American Bar Association, the Commonwealth Lawyers Association, law professors and legal historians, the United Nations High Commissioner for Human Rights (UNHCR), and domestic and international non-governmental organizations.

The Supreme Court heard Boumediene and Al Odah on December 5, 2007, and on July 12, 2008, ruled 5-4 in favor of the detainees, holding, first, that the detainees at Guantanamo have a constitutional right to habeas relief and, second, that the review process under the Detainee Treatment Act was not an adequate substitute for full habeas review. It was CCR’s second major win in the Supreme Court on the Guantanamo cases and explicitly established the right of the men held at the base to challenge their detention in federal court.

Case Timeline

November 20, 2008

Following closed hearing on merits of their detention, Judge Richard J. Leon orders release of five of six Bosnian-Algerian petitioners in Boumediene

November 20, 2008

Following closed hearing on merits of their detention, Judge Richard J. Leon orders release of five of six Bosnian-Algerian petitioners in Boumediene

Judge Leon rules that the classified document provided by the government as justification for their continued detention was insufficient and orders the government to “take all necessary and appropriate diplomatic steps to facilitate the release of [Lakhdar Boumediene, Mohammed Nechla, Saber Lahmar, Mustafa Ait Idir, and Hadj Boudella] forthwith.”

June 25, 2008

Court of appeals remands Boumediene to district court for further proceedings consistent with Supreme Court’s opinion

June 25, 2008

Court of appeals remands Boumediene to district court for further proceedings consistent with Supreme Court’s opinion

June 12, 2008

Supreme Court rules 5-4 in favor of detainees, reversing Court of Appeals decision and granting detainees the writ of habeas corpus

June 12, 2008

Supreme Court rules 5-4 in favor of detainees, reversing Court of Appeals decision and granting detainees the writ of habeas corpus

December 5, 2007

Supreme Court hears oral arguments for Al Odah and Boumediene

December 5, 2007

Supreme Court hears oral arguments for Al Odah and Boumediene

November 13, 2007

CCR and co-counsel file reply brief in Supreme Court

November 13, 2007

CCR and co-counsel file reply brief in Supreme Court

October 2007

Amicus briefs are filed in support of government

October 2007

Amicus briefs are filed in support of government

October 9, 2007

Government files opposition brief in Supreme Court

October 9, 2007

Government files opposition brief in Supreme Court

August 24, 2007

CCR and co-counsel file opening briefs in Supreme Court for Al Odah and Boumediene

August 24, 2007

CCR and co-counsel file opening briefs in Supreme Court for Al Odah and Boumediene

August 24, 2007

More than 20 amicus briefs are filed from diverse range of supporters, including former military leaders, former diplomats, retired federal judges, and legal scholars

August 24, 2007

More than 20 amicus briefs are filed from diverse range of supporters, including former military leaders, former diplomats, retired federal judges, and legal scholars

June 29, 2007

Supreme Court, in first reversal in 60 years, announces it will hear consolidated Al Odah and Boumediene cases in 2007-08 term

June 29, 2007

Supreme Court, in first reversal in 60 years, announces it will hear consolidated Al Odah and Boumediene cases in 2007-08 term

This marks the third time in the history of the detention camp at Guantanamo Bay that the Supreme Court will hear a case concerning the rights of the detainees.

April 2007

CCR and co-counsel petition Supreme Court for rehearing

April 2, 2007

Supreme Court declines to hear Guantanamo cases

April 2, 2007

Supreme Court declines to hear Guantanamo cases

Accompanying the denial of certiorari are unusual explanatory statements: three Justices dissent, and Justices Stevens and Kennedy issue a statement in support of the denial suggesting that the detainees should exhaust the remedies available in the CSRT review scheme established by the DTA and MCA.

February 20, 2007

Court of appeals rules against detainees in Boumediene and Al Odah

February 20, 2007

Court of appeals rules against detainees in Boumediene and Al Odah

After three rounds of briefing to respond to both the DTA and the MCA and almost two years after the cases were consolidated in the D.C. Circuit, the Court of Appeals holds 2-1 that Guantanamo detainees have no constitutional right to habeas corpus review of their detentions in federal court, as the common law habeas, according to the majority, does not extend to noncitizens captured abroad and held outside the United States. Because the court also finds that the MCA eliminated any statutory right to habeas corpus, it dismisses the cases. 

December 13, 2006

Hamdan challenges MCA's new applicability to his habeas corpus petition in light of his Supreme Court victory and loses

December 13, 2006

Hamdan challenges MCA's new applicability to his habeas corpus petition in light of his Supreme Court victory and loses

District Court Judge James Robertson rules against Salim Hamdan, finding that the MCA prohibited the federal courts from exercising jurisdiction over his habeas petition.

November 20, 2006

CCR and co-counsel file reply brief in Al Odah v. United States and Boumediene v. Bush addressing MCA

November 20, 2006

CCR and co-counsel file reply brief in Al Odah v. United States and Boumediene v. Bush addressing MCA

November 13, 2006

Government files supplemental brief addressing MCA

November 13, 2006

Government files supplemental brief addressing MCA

November 1, 2006

CCR joins attorneys filing brief in Al Odah v. United States that, together with Boumediene v. Bush, challenges MCA and argues that either retroactive suspension of detainees' right of habeas corpus does not apply to pending cases, or that it is flatly unconstitutional

November 1, 2006

CCR joins attorneys filing brief in Al Odah v. United States that, together with Boumediene v. Bush, challenges MCA and argues that either retroactive suspension of detainees' right of habeas corpus does not apply to pending cases, or that it is flatly unconstitutional

October 18, 2006
DOJ tells district court that with passage of MCA it no longer has jurisdiction
October 18, 2006
DOJ tells district court that with passage of MCA it no longer has jurisdiction

The Department of Justice notifies the U.S. District Court for the District of Columbia that because of the the Military Commissions Act (MCA), the district court no longer has jurisdiction to consider habeas corpus petitions brought on behalf of Guantanamo detainees.

October 17, 2006

In response to Supreme Court decision in Hamdan, Congress enacts Military Commissions Act (MCA) of 2006

October 17, 2006

In response to Supreme Court decision in Hamdan, Congress enacts Military Commissions Act (MCA) of 2006

The MCA is created as a direct response to the Supreme Court's decision in Hamdan v. Rumsfeld and Congress' prohibition of cruel, inhuman and degrading treatment during interrogations in the McCain Amendment to the DTA. Among other things, the MCA severely limits the avenues of judicial review for non-citizens held in U.S. custody. The MCA aims to eliminate judicial review for any claims challenging any aspect of detention or treatment of all non-citizen detainees determined to be "enemy combatants" or "awaiting such determination." The MCA also ratifies the severely limited CSRT review process, established under the DTA, as a substitute for habeas corpus.

June 29, 2006

Supreme Court decides Hamdan v. Rumsfeld, a challenge by a Guantanamo detainee charged under military commissions established by executive order

June 29, 2006

Supreme Court decides Hamdan v. Rumsfeld, a challenge by a Guantanamo detainee charged under military commissions established by executive order

The Court holds that the DTA does not preclude federal jurisdiction of pending habeas actions. It also rules that the military commissions, as defined under the President's 2001 executive order, violate military law and the Geneva Conventions.

March 28, 2006

Supreme Court hears supplemental argument in Hamdan v. Rumsfeld on effect of DTA on petitioner's habeas petition and challenge to his military commission proceeding

March 28, 2006

Supreme Court hears supplemental argument in Hamdan v. Rumsfeld on effect of DTA on petitioner's habeas petition and challenge to his military commission proceeding

March 22, 2006

D.C. Circuit hears supplemental argument in Al Odah/Boumediene on effect of DTA on petitioners' habeas petitions

March 22, 2006

D.C. Circuit hears supplemental argument in Al Odah/Boumediene on effect of DTA on petitioners' habeas petitions

January 2006

Government moves to dismiss appeals in both Hamdan v. Rumsfeld at Supreme Court and Al Odah and Boumediene before D.C. Circuit, arguing DTA should be applied retroactively

January 2006

Government moves to dismiss appeals in both Hamdan v. Rumsfeld at Supreme Court and Al Odah and Boumediene before D.C. Circuit, arguing DTA should be applied retroactively

In response, both courts order supplemental briefing on the DTA's impact upon their jurisdiction.

December 30, 2005
DTA attempts to strip detainees of direct access to courts
December 30, 2005
DTA attempts to strip detainees of direct access to courts

The Detainee Treatment Act of 2005 (DTA) is enacted into law, purporting to strip U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantanamo detainees and vesting exclusive review of final decisions of CSRTs and military commissions in the Court of Appeals for the D.C. Circuit.

May 27, 2005

Court of Appeals consolidates cases on appeal as Al Odah v. United States and Boumediene v. Bush

May 27, 2005

Court of Appeals consolidates cases on appeal as Al Odah v. United States and Boumediene v. Bush

The Court of Appeals for the D.C. Circuit consolidates the appeals of In re Guantanamo Detainee Cases with the appeals from Khalid v. Bush as Al Odah v. United States and Boumediene v. Bush.

March 10, 2005
Court of appeals grants petition and cross-petition for interlocutory appeal
March 10, 2005
Court of appeals grants petition and cross-petition for interlocutory appeal

The Court of Appeals of the D.C. Circuit grants the government's petition for interlocutory appeal and the detainees' cross-petition for interlocutory appeal.

February 3, 2005

Judge Green certifies order for appeal and grants government's motion for stay

February 3, 2005

Judge Green certifies order for appeal and grants government's motion for stay

Judge Green certifies the interlocutory order for appeal by the respondents for In re Guantanamo Detainee Cases, and grants the government's motion for a stay of proceedings pending outcome of the appeal of Khalid and In re Guantanamo Detainee Cases, consolidated on appeal as Al Odah v. United States and Boumediene v. Bush.

January 31, 2005
Judge Green rules in 11 habeas petitions that detainees are entitled to constitutional due process rights
January 31, 2005
Judge Green rules in 11 habeas petitions that detainees are entitled to constitutional due process rights

Judge Green issues a ruling contrary to Judge Leon's in the remaining 11 habeas petitions, In re Guantanamo Detainee Cases, holding that the detainees are entitled to constitutional due process rights that were not satisfied by the CSRTs and that some of the detainees hold rights under the Third Geneva Convention.

January 19, 2005
Judge Leon dismisses two habeas petitions
January 19, 2005
Judge Leon dismisses two habeas petitions

D.C. District Court Judge Richard J. Leon grants the government's motion to dismiss two of the habeas petitions assigned to him. In Khalid v. Bush, Judge Leon holds that the non-citizen detainees at Guantánamo detained outside the sovereign territory of the United States in the course of the war against Al Qaeda and the Taliban possess no substantive rights to due process that would allow them to vindicate themselves via habeas corpus petitions. Judge Leon holds that they possess no constitutional rights; that no federal law was relevant and applicable; and that international law is not binding in this instance.

November 8, 2004

Judge Green establishes counsel access procedures

November 8, 2004

Judge Green establishes counsel access procedures

In response to the government's October 4, 2004 motion to dismiss, Judge Joyce H. Green issues an amended protective order establishing counsel access procedures in In re Guantanamo Detainee Cases, of which Al Odah v. United States is a part.

October 20, 2004

Judge Kollar-Kotelly upholds detainees' right to counsel and attorney-client privacy and denies government's request to monitor attorney-petitioner communications

October 20, 2004

Judge Kollar-Kotelly upholds detainees' right to counsel and attorney-client privacy and denies government's request to monitor attorney-petitioner communications

District Court Judge Kollar-Kotelly issues a memorandum opinion in the decision Al Odah v. United States, upholding the detainees' right to counsel and attorney-client privacy and denying the government's request to monitor attorney-petitioner communications.

October 4, 2004
Government files motion to dismiss all Guantanamo detainee cases
October 4, 2004
Government files motion to dismiss all Guantanamo detainee cases
August 17, 2004
Judge Joyce H. Green is appointed coordinating judge for all remaining Guantanamo cases
August 17, 2004
Judge Joyce H. Green is appointed coordinating judge for all remaining Guantanamo cases
August 16, 2004
After petitioners object to government's proposed monitoring of attorney-client meetings, hearing is held in D.C. District Court to address the issue
August 16, 2004
After petitioners object to government's proposed monitoring of attorney-client meetings, hearing is held in D.C. District Court to address the issue
July 30, 2004
Government moves to obtain real-time monitoring of oral communication between attorneys and petitioners in Guantánamo cases
July 30, 2004
Government moves to obtain real-time monitoring of oral communication between attorneys and petitioners in Guantánamo cases
July 17, 2004

Seventeen formal applications for writs of habeas corpus are filed in Al Odah v. United States

July 17, 2004

Seventeen formal applications for writs of habeas corpus are filed in Al Odah v. United States

Lakhdar Boumediene and Fawzi al Odah are among those filing habeas petitions in the D.C. District Court.

July 8, 2004

Boumediene v. Bush is filed in D.C. District Court

July 8, 2004

Boumediene v. Bush is filed in D.C. District Court

The case is filed as petition for a writ of habeas corpus.

July 7, 2004
Government authorizes establishment of Combatant Status Review Tribunals (CSRTs)
July 7, 2004
Government authorizes establishment of Combatant Status Review Tribunals (CSRTs)

The CSRTs are administrative tribunals expressly designed to confirm the Executive's prior enemy combatant status determinations. In these tribunals, military officers review each detainee's enemy combatant status without the involvement of lawyers for the detainees and with myriad additional procedural flaws. For example, the CSRT procedures permit evidence obtained under coercion or torture and deny detainees access to classified evidence, which in some cases constituted the majority of the evidence presented to the tribunal. The tribunals are another effort to avoid providing the detainees access to U.S. courts as the Supreme Court had ordered.

July 2, 2004

CCR coordinates filing of first habeas corpus petitions submitted after Rasul

July 2, 2004

CCR coordinates filing of first habeas corpus petitions submitted after Rasul

June 28, 2004

Supreme Court decides CCR's first Guantanamo case, Rasul v. Bush

June 28, 2004

Supreme Court decides CCR's first Guantanamo case, Rasul v. Bush

In a landmark ruling, the Supreme Court decides Rasul v. Bush, ruling that non-citizen detainees held at Guantánamo have the right to challenge their detention in U.S. courts, and reversing the D.C Circuit Court of Appeals decision in Al Odah v. United States and remanding the petitions back to the lower courts.