SHAFIQ RASUL, et al.

Petitioners,

v.

GEORGE W. BUSH , et al.,

Respondents

Subject title: Comparative Constitutional Law

Submitted to: Prof. Vasanti
Submitted by: Rajesh Deoli
Class-year-sem: LL.M-1 styr-1stsem
Roll no.: 2010-30

NALSAR University of law, Hyderabad

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 TABLE OF CONTENTS

Page no.

Table of Cases 3

Acknowledgement 4

Introduction 5,6

Basic Facts of Case 7

Issues raised in the case 8

Judgement 9,10

Comparative Analysis with other cases in Indian Judiciary 10

Comparative Analysis with Indian Constitution 11,12

Conclusion 12

Bibliography 13

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 TABLE OF CASES

1. al Odah v. United States,

2. Johnson v. Eisentrager,

3. Shaughnessy v. United States

4. Ahrens v. Clark

5. Braden v. 30th Judicial Circuit Court of Ky.

6. United States v. Verdugo-Urquidez,

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 ACKNOWLEDGEMENT

It is indeed a proud privilege to express my deep sense of gratitude and indebtedness to our
respected teacher and guide Prof. Vasanti, for her valuable guidance, scholarly inspiration, which he
has extended to me for the successful completion of this endeavour. I humbly express my profound
gratitude to her for his valuable suggestions and guidance in Comparative Constitutional law. I
sincerely acknowledge the help rendered by the Librarian and Staff of the NALSAR University,
Hyderabad whose cordial relations helped me for successful completion of project.

Rajesh Deoli
Roll No. 2010-30
LL.M-1 styear (1stsem)

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 INTRODUCTION

Rasul v. Bush, 542 U.S. 466 (2004), is a landmark United States Supreme Court decision
establishing that the U.S. court system has the authority to decide whether foreign nationals (non-
U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned. The 6-3 ruling on June 28,
2004, reversed a District Court decision, which held that the Judiciary had no jurisdiction to handle
wrongful imprisonment cases involving foreign nationals who are held in Guantanamo Bay. Justice
John Paul Stevens wrote the majority opinion and was joined by Sandra Day O'Connor, David
Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Anthony Kennedy concurring. Justice
Antonin Scalia filed a dissenting opinion and was joined by William Rehnquist and Clarence
Thomas. The claimant whose name the case bears, Shafiq Rasul, was released before the decision
was handed down.In early 2002, the Center for Constitutional Rights (CCR) was the first
organization to file two habeas corpus petitions, Rasul v. Bush and Habib v. Bush, challenging the
U.S. government’s practice of holding foreign nationals captured in Afghanistan detainees had been
designated enemy combatants and did not have access to counsel, the right to a trial or knowledge
of the charges against them. The Supreme Court, over the administration’s objections, agreed in
November 2003 to hear the cases of the Guantánamo detainees, namely Rasul v Bush and al Odah
v. Bush. The arguments were heard on April 20, 2004. In a ruling on June 28 2004, the Court that
the habeas corpus statute, 28 U.S.C. § 2241, entitled the detainees to challenge the validity of their
detention .Actually, the various plaintiffs came to be in Guantanamo Bay by different routes, but
were generally captured or arrested during the U.S. invasion of Afghanistan. The US Military
transferred Rasul, Asif Iqbal and David Hicks, who denied voluntarily joining any terrorist forces,
to Guantanamo Bay in December 2001. As noted by the District Court, they did not deny having
fought for the Taliban, but claimed that if they did take up arms, it was only when being attacked
and in self-defense.[citation needed] Rasul and Iqbal say they were with the Taliban because they
were taken captive. Hicks is silent on the matter in court filings, but his father, in filing the brief,
stated that he believed that his son had joined the Taliban forces. The twelve Kuwaitis claimed that
they were in Pakistan and Afghanistan giving humanitarian aid, and were seized by villagers
seeking bounties. They were transferred to Guantanamo Bay starting in January 2002. Mamdouh
Habib was arrested by Pakistani authorities on October 5, 2001, two days before the fighting
began1.
Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate
force against nations, organizations, or persons that planned, authorized, committed, or aided in the
September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to
wage a military campaign against al Qaeda and the Taliban regime that had supported it.

1http://www.cdi.org/news/law/guantanamo.cfm
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Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in
military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies
under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete
jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits
under federal law challenging the legality of their detention, alleging that they had never been
combatants against the United States or engaged in terrorist acts, and that they have never been
charged with wrongdoing, permitted to consult counsel, or provided access to courts or other
tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of
jurisdiction, holding that, under Johnson v. Eisentrager2, aliens detained outside United States
sovereign territory may not invoke habeas relief. . But Supreme Court of America, rejected
respondents' primary submission that these cases are controlled by Eisentrager's holding that a
District Court lacked authority to grant habeas relief to German citizens captured by U. S. forces in
China, tried and convicted of war crimes by an American military commission headquartered in
Nanking, and incarcerated in occupied Germany.Considering that § 2241 draws no distinction
between Americans and aliens held in federal custody, there is little reason to think that Congress
intended the statute's geographical coverage to vary depending on the detainee's citizenship. Aliens
held at the base, like American citizens, are entitled to invoke the federal courts' § 2241 authority.
So those being held in federal custody in violation of United States laws, and the District Court's
jurisdiction over petitioners' custodians is unquestioned, cf. Braden, 410 U. S., at 495. Section 2241
requires nothing more and therefore confers jurisdiction on the District Court.
Shortly after the
terrorist attacks of September 11, 2001, the Executive rapidly began capturing detainees abroad and
transporting them to Guantanamo Bay, Cuba. It has been suggested by many scholars that the
Executive chose Guantanamo as a detention location to create a zone where no laws would apply,
shielding the detention and related occurrences from any sort of legal review. The Executive
derived this particular understanding of the law fromJohnson v. Eisentrager, as evidenced by its
stringent reliance on that case. Eisentrager was commonly interpreted as holding that the
Constitution only applied in areas where America exercised formal sovereignty.The Executive held
prisoners in Guantanamo under the power granted by the Authorization to Use Military Force
(AUMF) and began conducting Combatant Status Review Tribunals (CSRTs) to determine whether
the persons detained at Guantanamo were “enemy combatants” such that they “could be detained
for the duration of the ‘war on terror’”. So, the Judiciary played an important role in restricting the
arbitrary exercise of Executive order by allowing the detainees to invoke habeas corpus in any
federal Court of America.

2[1950] USSC 60 ; 339 U.S 763

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 BASIC FACTS

On September 11, 2001, agents of the al Qaeda terrorist network hijacked four commercial airliners
and used them as missiles to attack American targets. While one of the four attacks was foiled by
the heroism of the plane's passengers, the other three killed approximately 3,000 innocent civilians,
destroyed hundreds of millions of dollars of property, and severely damaged the U. S. economy. In
response to the attacks, Congress passed a joint resolution authorizing the President to use "all
necessary and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attack or harbored such organizations or
persons." Authorization for Use of Military Force, Pub. L. 107-40, §§ 1-2, 115 Stat. 224. Acting
pursuant to that authorization, the President sent U. S. Armed Forces into Afghanistan to wage a
military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners in
these cases are 2 Australian citizens and 12 Kuwaiti citizens who were captured abroad during
hostilities between the United States and the Taliban. Since early 2002, the U.S. military has held
them along with, according to the Government's estimate, approximately 640 other non-Americans
captured abroad at the naval base at Guantanamo Bay. The United States occupies the base, which
comprises 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903
Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the
Spanish-American War. Under the agreement, "the United States recognizes the continuance of the
ultimate sovereignty of the Republic of Cuba over the [leasedareas]," while "the Republic of Cuba
consents that during the period of the occupation by the United States ... the United States shall
exercise complete jurisdiction and control over and within said areas." In 1934, the parties entered
into a treaty providing that, absent an agreement to modify or abrogate the lease, the lease would
remain in effect "[s]o long as the United States of America shall not abandon the ... naval station of
Guantanamo." In 2002, petitioner Rasul, one of the detainee in Guantanamo bay , through relatives
acting as their next friends, filed various actions in the U.S. District Court for the District of
Columbia challenging the legality of their detention at the base 3. All alleged that none of the
petitioners has ever been a combatant against the United States or has ever engaged in any terrorist
acts. They also alleged that none has been charged with any wrongdoing, permitted to consult with
counsel, or provided access to the courts or any other tribunal. But the District Court dismissed their
habeas corpus suit and subsequently, Court of appeals affirmed.

3http://en.wikipedia.org/wiki/Rasul_v._Bush
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 ISSUES RAISED

There were many issues and questions raised but primary one was 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 Guantánamo Bay Naval Base, Cuba.
In Court it was also raised that can § 2241 is limited by the principle that legislation is presumed
not to have extraterritorial application unless Congress clearly manifests such an intent. Such cases
are controlled by Eisentrager's holding that a District Court lacked authority to grant habeas relief to
German citizens captured by U. S. forces in China, tried and convicted of war crimes by an
American military commission headquartered in Nanking and incarcerated in occupied Germany or
not ?

JUDGEMENT

The Supreme Court of America held that District Court has jurisdiction to hear petitioners' habeas
challenges under 28 U. S. C. § 2241, which authorizes district courts, "within their respective
jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in
violation of the ... laws ... of the United States," §§ 2241(a), (c)(3). Such jurisdiction extends to
aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction,
but not "ultimate sovereignty."4
The Supreme Court also held that the conditions mentioned in Johnson v.Eisentrager are different
from this case,so we cannot follow it or refer in this case.
The court highlighted certain elements of the Eisentrager findings, namely the petitioners' status as:
� enemy aliens
� never residing in the United States
� captured outside U.S. territory and held there in military custody as a prisoner of war

� tried and convicted by a military commission sitting outside the United States
� tried and convicted for offenses against the laws of war, committed outside the
United States
� at all times imprisoned outside the United States

4www.worldlii.org
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In contrast, the court pointed out, the Guantanamo Bay detainees:

� are not nationals of countries at war with the United States

� deny they have engaged in or plotted acts of aggression against the United States
(keep in mind the question before the court is one of initial jurisdiction, not the
ultimate merits of each case but whether petitioners get their case "past the door")
� have never been afforded access to any tribunal
� therefore have never been tried and convicted of wrongdoing
� for more than two years have been imprisoned in territory over which the United
States exercises exclusive jurisdiction and control 5

Comparative Analysis with other cases in Indian Judiciary

Though recently only one case has been referred in indian context i.e. Konsam Brojen Singh vs
State Of Manipur And Ors., as we know that Rasul v. Bush is the latest case relating to jurisdiction
of Courts deciding upon habeas corpus petition of an alien detained outside sovereign territory of
America. So the contention was also upheld by the Guwhati High Court that the detaining
authorities did not communicate to the detenue of their right to make representation to the detaining
authority in addition to their rights to make representation to the appropriate Government. The
detention orders are, therefore, liable to be set aside and quashed. The detention orders passed by
the District Magistrate, Chandel, dated 4.7.2005 passed by the District Magistrate, Bishnupur
District, dated 21.11.2005 issued by the District Magistrate, Bishnupur shall accordingly stand
quashed. The respondents were accordingly directed to release the detenues and were accordingly
set at liberty. It was held by the Court that a detenue has two rights under Article 22(5) of the
Constitution:
(i) to be informed, as soon as may be, the grounds on which the order of detention is passed, i.e., the

grounds which led to the subjective satisfaction of the detaining authority, and
(ii) to be afforded the earliest opportunity of making a representation against the order of detention.
(iii)The twin rights are available to a detenu whether they are provided for or not in the preventive
detention laws. The right to make representation to the detaining authority by a detenue in addition
to his right to file representation to the Central Government or appropriate Government is also
guaranteed under Article 22(5) of the Constitution which forms part of package of guaranteed
fundamental right. No distinction as such could be made in this regard in respect of the detention
5www.wlii.org
9
orders made either under COFEPOSA, PIT NDPS or National Security Act, 1980, as the case may
be.
(iv) The detaining authority is under the constitutional obligation to inform the detenue of his right
to make such a representation to the detaining authority6.

Comparative Analysis with Indian Constitution:

The rights of alien while in detention is clearly mentioned under Constitution of India,1950 under
Article-22 Protection against arrest and detention in certain cases and Article-22 says that:
(1) No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an
enemy alien; or (b) to any person who is arrested or detained under any law providing for
preventive detention
(4) No law providing for preventive detention shall authorise the detention of a person for a longer
period than three months unless (a) an Advisory Board consisting of persons who are, or have been,
or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the
said period of three months that there is in its opinion sufficient cause for such detention:
(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that
clause to disclose facts which such authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe :
(a) the circumstances under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause
(a) of clause ( 4 );

6www.manupatra.com
10
(b) the maximum period for which any person may in any class or classes of cases be detained
under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause
(4 ) Right against Exploitation

So under Constitution of India, protection is guareented by Article 22 against illegal detention of a

'person' and person means not only citizens but also aliens and he/she has right to file a petition of
habeas corpus against such executive action under Article 32. While in American Constitution,
under Article The U.S. Constitution states that "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".
A declaration of a state of emergency can suspend the right to habeas corpus. The Fifth Amendment
the United States Constitution states in part:
“No person shall be held to answer for any capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of
life, liberty, or property, without due process of law”7

The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the
accusation". The U.S. Bill of Rights thus grants some protection against being held without criminal
charge, subject to the courts' interpretation of what due process means. Federal authorities have also
exercised the power to arrest people on the basis of being a material witness. Involuntary
commitment of the mentally ill is another category of detention without criminal prosecution, but
the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of
Rights, and the practice is controversial, especially when applied to sex offenders. The executive's
military powers have been used to justify holding enemy combatants as prisoners of war, unlawful
combatants, and Civilian Internees; the latter two practices have been controversial, especially with
regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be
declared to have ended. Administrative detention, a term applied to many of these categories, is
also used to imprison illegal immigrants. Not only in the provisions of different Constitutions but
also in the international agreements. International Covenant on Civil and Political Rights, G.A. Res.
2200A (XXI), 21 U.N. GAOR. Supp. No. 16 at 52, U.N. Doc. A/6316 (1966), Geneva Convention.
J.A. 92, 119. also protects rioghts of alien detained in illegal detention.

7http://en.wikipedia.org/wiki/Detention_of_a_suspect
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 CONCLUSION

In a 6-to-3 opinion written by Justice John Paul Stevens, the Court found that the degree of control
exercised by the United States over the Guantanamo Bay base was sufficient to trigger the
application of habeas corpus rights. Stevens, using a list of precedents stretching back to mid-17th
Century English Common Law cases, found that the right to habeas corpus can be exercised in
"all ... dominions under the sovereign's control." Because the United States exercised "complete
jurisdiction and control" over the base, the fact that ultimate sovereignty remained with Cuba was
irrelevant. Further, Stevens wrote that the right to habeas corpus is not dependent on citizenship
status. The detainees were therefore free to bring suit challenging their detention as
unconstitutional. So this case restricted the executive from doing any arbitrary act which is
violating human rights of a person belonging to some other country and Judiciary checked the
arbitrary action of executive and so justifying separation of power.

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 BIBLIOGRAPHY

1) Introduction to the Constitution of India- D.D. Basu

2) Comparative Constitutional Law- D.D. Basu

3) http://www.oyez.org/cases/2000-2009/2003/2003_03_334/

4) World Legal Information Institute (http://www.wlii.org)

5) Manupatra

6) Westlaw

7) Rasul v. Bush, No. 03-334, al Odah v. United States, No. 03-343, 542 U.S. __ (2004)(oral
argument),http://www.supremecourtus.gov/oral_arguments/
argument_transcripts/03-334.pdf.
8) Rasul v. Bush, No. 03-334, al Odah v. United States, No. 03-343, 542 U.S. __ (2004)(slip. op.),
www.cdi.org/news/law/rasul-decision.pdf.
9) Wikipedia

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