Boumediene v. Bush (06-1195); Al Odah v. United States (06-1196)

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Oral argument: December 5, 2007

Appealed from: United States Court of Appeals, D.C. Circuit (2007)

HABEAS CORPUS, SUSPENSION CLAUSE, GUANTANAMO, DETAINEES, MILITARY COMMISSIONS ACT, DETAINEE TREATMENT ACT, COMBATANT STATUS REVIEW TRIBUNALS

Boumediene v. Bush and Al Odah v. United States come to the Supreme Court as the latest chapter in the ongoing battle over the scope of rights that detainees at Guantanamo Bay have.�� In early 2002, six humanitarian workers were arrested in Bosnia and transported to Guantanamo Bay.� They, along with other non-citizen detainees, seek to exercise the constitutional right of habeas corpus to appear before a federal court to contest their detention. Currently, a military tribunal determines whether a detainee is properly detained at Guantanamo as an "enemy combatant." The D.C. Circuit found that the Military Commissions Act ("MCA"), which precludes federal jurisdiction over the detainees' habeas claims, applies to the detainees, and that detainees are not entitled to the constitutional writ of habeas corpus because they are "without presence or property within the U.S."

On appeal before the Supreme Court are several important constitutional issues, including whether the MCA's suspension of habeas corpus for non-citizen Guantanamo detainees is consistent with the Constitution.� Additionally, the Court will likely examine whether Combatant Status Review Tribunals and D.C. Circuit review constitute an adequate substitute for habeas corpus.� Finally, the Court may delimit the scope of constitutional rights possessed by non-citizen Guantanamo detainees. The Court's decision will significantly impact both detainee rights and limits to the military's wartime powers, as well as clarify the judiciary's position in the system of checks and balances with the executive and legislative branches.

Questions presented

Boumediene v. Bush:

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

2. Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah v. United States:

1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court's ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?

2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners' right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?

3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?

4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts' jurisdiction over petitioners' pending habeas cases, thereby creating serious constitutional issues?

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Issues

Does the Military Commissions Act of 2006 ("MCA") preclude federal jurisdiction over all habeas corpus petitions filed by non-citizen detainees at Guantanamo Bay, and if so, does the MCA violate the Suspension Clause of the Constitution, which states that habeas cannot be suspended except in times of rebellion or invasion?

Regardless of whether the detainees have rights under the Suspension Clause or the Constitution, are the Combatant Status Review Tribunals and D.C. Circuit Court review (as established by the Detainee Treatment Act) an adequate and effective substitute for the constitutional right to habeas corpus?

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Facts

These consolidated cases involve federal court jurisdiction over petitions for writs of habeas corpus filed by foreign nationals detained at the United States Naval Station in Guantanamo Bay. The writ of habeas corpus allows a detained person to challenge the lawfulness of their detention in court. The government asserts that all Guantanamo detainees have been legitimately detained in connection with the ongoing conflicts with al Qaeda or the Taliban regime. Brief for Respondents at 2. In addition to maintaining their innocence, the detainees allege that withholding habeas rights from them violates the Suspension Clause of the Constitution, which prohibits the suspension of habeas except in times of rebellion or invasion. See Boumediene v. Bush, Al Odah v. United States, 476 F.3d 981 (D.C. Cir. 2007) ("Boumediene") ; U.S. Constitution, Art. I, � 9.

The detainees in these cases comprise three sets of petitioners. The Boumediene detainees include six Bosnian-Algerian natives who were arrested by local Bosnian police in late 2001 on suspicion of plotting to attack the U.S. embassy in Sarajevo. See Brief for Boumediene Petitioners at 1-2. After a three-month international investigation, the detainees were released for lack of evidence. Id. at 2. Immediately upon release, however, the United States military transported them to Guantanamo. Id.The Boumediene detainees are joined by the Al Odah detainees, who include four Kuwati citizens and twelve Yemeni citizens, as well as the three El- Banna detainees, some of whom were taken into custody in Afghanistan and Pakistan. Most of the detainees have been under United States custody for more than five years. See Brief for Petitioners Al Odah at 2; Brief for Petitioners El-Banna at iii, 1.

After the September 11, 2001 terrorist attacks, Congress enacted the Authorization for Use of Military Force ("AUMF"). Pub. L. 107-40, 115 Stat. 224 (2001) . Using the AUMF and his authority as Commander-in-Chief, President Bush issued a military order authorizing the detainment of non-citizens suspected of terrorism. 66 Fed. Reg. 57833, � 2 (Nov. 13, 2001) .

As a result, the government began imprisoning detainees at Guantanamo in early 2002. Guantanamo is unique because it is leased to the United States by Cuba. Under this lease agreement, the United States asserts "complete jurisdiction and control over and within" the leased land, but also acknowledges the "continuance of the ultimate sovereignty of the Republic of Cuba." See Agreement Between the U.S. and Cuba, Feb. 23, 1903 at Article III.

The Al Odah detainees protested their detention by filing habeas actions in the U.S. District Court for the District of Columbia. Brief for Petitioners Al Odah at 3. The district court found that the detainees were aliens held outside U.S. sovereign territory, and dismissed the case. Id. In doing so, it relied on Johnson v. Eisentrager, a 1950 case in which the Supreme Court dismissed federal habeas actions filed by Germans detained in U.S.-occupied Germany. 339 U.S. 763, 765-66 (1950) .

The United States Supreme Court overturned the dismissal in Rasul v. Bush, holding that the federal habeas statute extends to aliens at Guantanamo because it is an area "over which the United States exercises exclusive jurisdiction and control," even though it is within Cuba. 542 U.S. 466, 476 (2004) . That same day, the Court also set out due process requirements for United States citizens detained at Guantanamo in Hamdi v. Rumsfeld. 542 U.S. 507, 533 (2004) . These requirements include the opportunity to rebut accusations before a neutral decision maker. Id. The Court then remanded the detainee habeas actions. Boumediene, 476 F.3d. at 995.

On remand, the D.C. district court granted the government's motion to dismiss two cases, one of which included the Boumediene detainees, and held that aliens outside the United States sovereign territory have no constitutional rights. See Khalid v. Bush, 355 F. Supp. 2d 311, 323 (D.D.C. 2005) . For the eleven other Guantanamo detainee cases, one of which included the Al Odah detainees, the D.C. district court denied the government's motion to dismiss to the portion of the claims alleging violations of the Fifth Amendment Due Process Clause and the Third Geneva Convention. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 481 (D.D.C. 2005) .

Meanwhile, Congress rejected the Supreme Court's decision in Rasul by enacting the Detainee Treatment Act of 2005 ("DTA"). Pub.L. No. 109-148, 119 Stat. 2680 (2005) . The DTA explicitly states that no U.S. court has jurisdiction over habeas petitions filed by Guantanamo detainees. DTA � 1005(e)(1) ; see Boumediene, 476 F.3d at 985. The DTA provides a limited exception for the D.C. circuit court to review decisions made by Combatant Status Review Tribunals ("CSRTs").

Created by the Department of Defense after Rasul and Hamdi, CSRTs determine whether Guantanamo detainees are "enemy combatants," and may therefore be detained under the AUMF. Order Establishing Combatant Status Review Tribunal, July 7, 2004 . Each CSRT is composed of "three neutral commissioned officers of the U.S. Armed Forces" who were not involved in the "apprehension, detention, interrogation, or previous determination of status" of the detainee under review. Id . at 1-2. CSRTs provide a detainee with the opportunity to challenge classification as an enemy combatant, a "personal representative," who is not necessarily an attorney, and review of unclassified evidence related to the detention. Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba, July 14, 2006 .

Shortly after the CSRTs were created, detainees with habeas actions pending at the DTA's enactment sued to contest the applicability of the CSRT procedures. In Hamdan v. Rumsfeld, the Supreme Court held that the DTA did not remove federal courts' jurisdiction over habeas cases pending at the DTA's enactment. 126 S.Ct. 2749 (2006) . The Court reasoned that the DTA did not specifically state whether the new section applied to pending cases, and that Congress' omission must have been intentional. See id. at 2769. The court did not, however, address the issue of whether the Constitution permitted Congress to revoke federal courts' jurisdiction to hear detainee habeas petitions.

Congress responded again by enacting the Military Commissions Act of 2006 ("MCA"). Pub.L. No. 109-366, 120 Stat. 2600 (2006) . The MCA specifies that the DTA's preclusion of jurisdiction applies to "all cases, without exception, pending on or after" the DTA's enactment which related to "any aspect of the detention.of an alien detained by the United States after September 11, 2001." See id. at Sec. 7(b).

After this exchange between Congress and the Supreme Court, the United States Court of Appeals for the District of Columbia decided the current Boumediene cases, holding that the MCA applied to the detainees' habeas petitions. 476 F.3d at 986. The D.C. circuit court also held that the MCA does not violate the Suspension Clause because the clause does not apply to the detainees. Id. at 988-94. The court followed Eisentrager in reasoning that the writ of habeas as it existed in 1789 was not available to aliens who were "without presence or property within the U.S.," and therefore the writ is unavailable to the detainees. 339 U.S. at 765-66; 476 F.3d at 990. The dissent in the 2-1 decision argued that even if the statutory writ is unavailable to detainees, the common law writ still extends habeas rights to them. 476 F.3d at 1001-03.

The Supreme Court initially denied the detainees' petition for certiorari in April of 2007. Initial Denial of Certiorari . In an unusual turn of events, however, the Court granted certiorari to rehear the cases on the last day of its term in June 2007. Boumediene Petition for Rehearing Granted ; Al Odah Petition for Rehearing Granted.

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Discussion

Imagine that you are an officer in the U.S. military.� You have sworn to protect your country, and one of your duties is to prevent another terrorist attack on the United States. You help detain a small group of hostile foreign nationals, all of whom appear to be cooperating with terrorist groups to carry out future attacks on the United States. The detained foreign nationals receive a hearing before a Combatant Status Review Tribunal ("CSRT") where they have an opportunity to testify, present relevant and reasonably available evidence, and have a personal representative to assist them. The CSRT determines that the foreign nationals are enemy combatants and potential threats to the United States.� They are imprisoned in Guantanamo Bay to prevent them from participating further in terrorist activities. See generally Brief for Respondents at 1-5.

Now imagine that you are a humanitarian worker in a country that is not at war with the United States.� One day, local officials arrest you on suspicion of plotting to attack an embassy. After a lengthy criminal investigation, you are exonerated and released. Before you can go home, however, you are detained by the U.S. military and sent to Guantanamo Bay. Although you want to contest your detention, U.S. legislation explicitly prohibits U.S. courts from hearing your claim. Instead, you protest to a CSRT, a tribunal composed of military officers, that you were not involved in the embassy plot. You do not have an attorney to assist you in this process. The CSRT determines that you are an enemy combatant, based partially on hearsay and classified evidence. Once the CSRT makes its determination, you remain imprisoned at Guantanamo Bay until the United States ascertains that the terrorist threat has been eliminated. See generally Brief for Boumediene Petitioners at 1-6; Center for Constitutional Rights Press Release for Mar. 5, 2007.

Both of these fact patterns describe the situation faced by U.S. military officers, who must make decisions to protect national security, and the Al Odah and Boumediene detainees. Do the detainees have the right to a habeas corpus hearing to contest their detention in a U.S. court? If not, do CSRTs provide them an adequate alternative remedy? Boumediene v. Bush and Al Odah v. United States bring these issues to the Supreme Court in what will be one of the most heated battles of the Court's term. Over two dozen amicus briefs have been filed on behalf of the parties from a range of interested entities, including former U.S. judges and military officers the United Nations High Commissioner for Human Rights, and 383 European Parliamentarians.

Importantly, the core question in these cases is not whether the United States should continue to detain those suspected of involvement in terrorist plots. See Brief of Amicus Curiae United States Senator Arlen Specter at 2-3. Rather, the issue is what remedies exist for foreign national Guantanamo detainees who argue that they have been wrongfully determined to be enemy combatants. Id.

The Supreme Court's decision in these cases will enormously impact both detainee rights and limits to the military's wartime powers.� If the Court holds for the government, all habeas claims by non-citizen detainees held at Guantanamo will be dismissed. Current and future detainees will have no opportunity to contest their enemy contestant status other than an appearance before the CSRT, an entity that detainees argue is inadequate because its independence is questionable, it provides no attorney, and allows only a limited opportunity to hear and contest evidence.� See Brief for Boumediene Petitioners at 4-6.

A decision for the government would strengthen the military's power by aligning all three branches behind Guantanamo Bay detentions. On the other hand, such a result could obscure the boundary that determines how far the military power can go in conducting the "War on Terror." � For example, a decision for the government could sanction the creation of more Guantanamo-like detention facilities outside United States territory. See Jonathan Hafetz, Two Approaches to Detention Policy, The Jurist, Feb. 28, 2007.

Furthermore, a decision for the government would likely meet with great international outcry.� For example, the U.N. High Commissioner for Human Rights argues that the government's reliance on CSRTs to review the lawfulness of prisoner detentions breaches Article 9 of the International Covenant on Civil and Political Rights.� See Brief of Amicus Curiae United Nations High Commissioner at 5.� Other amicus briefs similarly contend that reliance on CSRTs violates the Geneva Conventions, to which the U.S. is a signatory, by not providing detainees a meaningful opportunity to contest the legality of their detention. See Brief of Amicus Curiae International Humanitarian Law Experts at 5. In addition, it erodes the effectiveness of the Conventions and "weakens the entire international legal regime." See id. at 18-19.

On the other hand, the government argues that it has already granted greater protections to the detainees than those laid out in the Geneva Conventions. Brief for Respondents at 12.� More importantly, the government argues that a decision in favor of the detainees could seriously undermine the military's efforts to fight terrorism.� See Brief of Amici Curiae Retired Generals and Admirals at 4. Allowing non-citizen enemy combatants access to the court system would weaken U.S. military strength by diverting resources and the "attention of field commanders from the military offensive abroad to the legal defensive at home." See Washington Legal Foundation Press Release for October 9, 2007.

The government also predicts that a ruling entitling the detainees to habeas hearings would significantly expand the scope of judicial review of Guantanamo detentions. Although such a decision would not necessarily lead to the release of detainees, it would require the United States to expend energy gathering evidence in order to detain suspected terrorists.

A decision in favor of the detainees would certainly continue the ongoing volley between the Court and the other two branches of government on this issue.� The government argues that the Court should defer to the determination made by the elected branches in balancing the detainees' freedom with national security concerns during an ongoing military conflict.� See Brief for Respondents at 11. On the other hand, the Petitioners argue that it is important to maintain the system of checks and balances, and that the Court must step in when the other branches go beyond the constitutional limits of their authority. See Brief for Petitioners El-Banna at 16-19. Additionally, it is not completely clear that the legislative branch will continue to hold the same position as the executive branch.� In particular, since Democratic party majorities were elected to Congress in late 2006, multiple bills have been introduced to provide habeas jurisdiction for Guantanamo detainees.� S.576, "Restoring the Constitution Act of 2007" ; S.185, "Habeas Corpus Restoration Act of 2007."

These cases have already gained historical significance in that they are the first in 60 years to be granted a rehearing after the Court initially denied certiorari. See International Federation for Human Rights for August 27, 2007.� In addition, the cases may emphasize the stark change in the composition of the Court since 2004 when it decided Rasul v. Bush, the most recent Supreme Court case concerning habeas rights of Guantanamo detainees. With Justice O'Connor's retirement in 2005, Justice Kennedy will play a decisive role in the outcome here.

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Analysis

As an initial matter, the detainees argue that the MCA does not repeal habeas jurisdiction in detainee habeas cases that were pending when the MCA was enacted. See Brief of Petitioners Al Odah at 26-27. The detainees maintain that MCA Section 7(b) does not "articulate[] a 'specific and unambiguous statutory directive' to repeal habeas jurisdiction" because, among other reasons, Section 7(b) does not specifically mention pending cases. Id. at 27-28. However, the government points to the text of Section 7(b), which eliminates jurisdiction over all habeas petitions "without exception." See Brief for Respondents at 14. Indeed, the lower court's opinion in Boumediene proclaimed that Congress' intent in drafting the MCA was clear and obvious, "[a]lmost as if the proponents of these words were slamming their fists on the table shouting "When we say 'all,' we mean all-without exception!" 473 F.3d at 987.

I. Does the MCA Violate the Suspension Clause of the United States Constitution?

The detainees argue that the MCA violates the Suspension Clause of the United States Constitution, which states, "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." U.S. Constitution, Art. 1, � 9 .Because there is no rebellion or invasion to justify the suspension of habeas corpus, the MCA violates the Constitution. See Brief for Boumediene Petitioners at 9-10; Brief for Petitioners Al Odah at 12. The government counters that rebellion and invasion both refer to emergencies inside the United States, and that the current terrorist threat qualifies as such an emergency. See Brief for Respondents at 15. The government also argues that the Suspension Clause's omission of overseas military operations demonstrates that the clause does not apply to aliens detained outside the United States. See id.

II. Does the Suspension Clause of the Constitution Apply to Detainees?

The detainees also argue that, under INS v. St. Cyr, the Suspension Clause applies to them because the common law writ of habeas corpus, as it existed in 1789, would have extended to them. See Brief for Petitioners Al Odah at 13.� In St. Cyr, the Supreme Court announced that "at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789,'" when the Constitution was ratified. 533 U.S. at 301. In support of their position, the detainees cite Rasul's analysis of English cases prior to 1789 demonstrating that the writ was available to aliens held outside English sovereign territory in areas subject to the Crown's de facto control. See Brief for Boumediene Petitioners at 12-13.� In their amicus brief, the Legal Historians note that English courts in India issued writs prior to Britain's 1813 assertion of formal sovereignty. See Brief of Legal Historians as Amici Curiae in Support of Petitioners at 13. Finally, the detainees point to the Rasul court's finding that Guantanamo is under the "complete jurisdiction and control" of the United States, and conclude that the MCA violates the Suspension Clause because the 1789 common law habeas writ would have extended to alien Guantanamo detainees. See Brief for Petitioners Al Odah at 19; Brief of Senator Specter at 6-7.

In response, the government argues that the MCA's removal of jurisdiction over detainees' habeas applications is consistent with the scope of habeas corpus as it existed in 1789. See Brief for Respondents at 14. The government maintains that the 1789 writ applied only to sovereign territories and not to those territories where the country merely exercised de facto control. See Id. at 27-29. The government argues that the United States does not exercise sovereignty over Guantanamo because, pursuant to the terms of the lease, the United States recognized Cuba's ultimate sovereignty over the area.� Id. at 33-34. Because the United States exercises no sovereignty over Guantanamo, the historical common law writ would be unavailable to aliens detained there. See id. at 36. Further, the government contends that the common law writ of habeas corpus traditionally excluded prisoners of war. Id. at 37. Although Guantanamo detainees are not prisoners of war under the Geneva Conventions, the government claims the enemy combatant designation "fall[s] within the common-law understanding of 'prisoners of war.'." Id. Moreover, the government argues that Rasul does not apply to the detainees' case because it only addressed the statutory writ that existed in 1789, and did not address the common law writ. See Brief for Respondents at 35.

The government also contends that Guantanamo detainees lack habeas rights under Johnson v. Eisentrager. Brief for Respondents at 20. Eisentrager, the government argues, denied habeas rights because the United States based on lacked sovereignty over the detention location and the German nationals' lacked of both voluntary connections to the United States and sovereignty over their detention location. See id. at 18-19. Like Eisentrager's German nationals, Guantanamo detainees possess no voluntary connections to the United States and are held outside its sovereign territory. Id. at 20-21. Moreover, the government contends that holding for the detainees would unnecessarily overrule Eisentrager's easy-to-administer sovereignty test in favor of the detainees' de facto control rule, and would have the undesirable result of "extend[ing] the Suspension Clause worldwide." See id. at 23-25.

The detainees contend that Eisentrager does not apply to them because they are materially different from Eisentrager's German nationals. Brief for Boumediene Petitioners at 15-16. The detainees stress that, in contrast with Eisentrager's convicted criminals from a hostile nation, the detainees are from a friendly nations and� who have not yet been charged or tried. See id. at 17-18. Citing Justice Kennedy's concurrence in Rasul, the detainees also claim that, unlike the German nationals in Eisentrager, detainees are held in Guantanamo, a United States territory. Brief for Petitioners Al Odah at 26.

III. Does the DTA Provide an Adequate Substitute Remedy?

The government argues that even if the detainees do have rights under the Suspension Clause, the CSRTs and DTA review provide an adequate and effective substitute for habeas hearings in a wartime context. See Brief for Respondents at 41. The detainees disagree, partially because CSRTs were established by the military. If Congress removes habeas rights, then Congress, not the military, must provide an adequate and effective substitute. See Brief for Petitioners Al Odah at 26. Additionally, the detainees and amici argue that CSRTs and DTA review fall short of habeas protections such as access to a neutral tribunal,; fair opportunity for detainees to rebut the accusations against them,; the availability of a swift and imperative remedy,; access to counsel,; and an opportunity to test the legal basis of their detention. See Brief of Senator Specter at 11-28; see also Brief for Petitioners Al Odah at 31-44.

The detainees argue that CSRTs lack the independence that courts possess because CSRT members are part of a military chain of command, and could be subject to influence from their superiors. Id. at 37. In particular, the detainees allege that government officials have sometimes pressured CSRT panels to change determinations that detainees were not enemy combatants. Id. Countering this criticism, the government explains that the CSRT members are neutral because they cannot have been involved in the detainees' detention, must swear to impartiality, and must follow their superiors' orders to be neutral decision-makers. See id. at 57.

The detainees also protest that habeas courts provide procedural protections that CSRTs lack.� For example, although habeas courts allow prisoners to see and challenge evidence, CSRTs sometimes rely on classified evidence that the detainees cannot review or contest. Id. Further, some evidence that CSRTs admit has been collected through coercion or torture, which the detainees claim renders the evidence unreliable and inadmissible in a habeas court. Brief for Petitioners Al Odah at 37-38. The government argues that it is not required to provide classified evidence to detainees during CSRT review because army regulations allow tribunals to close proceedings to detainees and to consider "national defense" implications of evidence. Id. at 55-56. The government also notes that CSRTs can reject evidence considered unreliable, including evidence that may have involved coercion. See id. at 58.

Counsel is not available to detainees in their initial CSRT appearance, and the detainees argue that the limited assistance of counsel that becomes available at the DTA review stage is ineffective compared to assistance of counsel available for habeas hearings. Id. at 35-36. The government points out that CSRT procedures do provide a "personal representative" to each detainee who "fulfills some of the most important functions of counsel," such as explaining the CSRT process and assisting the detainee in collecting, preparing, and presenting information to the tribunal. Id. at 55.

The detainees also object to the scope of the review under the DTA.� They contend that DTA review is limited to final CSRT decisions classifying detainees as enemy combatants, whereas habeas courts may conduct plenary review. Brief for Petitioners Al Odah at 31. The detainees cite Bismullah v. Gates for the proposition that CSRT determination of a detainee's status must be upheld if a preponderance of evidence in the CSRT record supports the determination, provided that the CSRT followed established procedures. See Brief for Boumediene Petitioners at 26-27; 501 F.3d 178, 186 (D.C. Cir. 2007). Finally, the detainees note that, unlike the habeas remedy for a finding that a person has been unlawfully detained, which is release, the only remedy available to a CSRT is remand to a new CSRT. See Brief for Petitioners Al Odah at 39. The detainees argue that this fact alone makes CSRTs an inadequate substitute for habeas review. See id.

The government maintains that CSRTs are an adequate substitute, and that under Hamdi v. Rumsfeld, even United States citizens may be detained as enemy combatants with no habeas rights, so long as they have (1) notice of the factual basis for the enemy combatant designation and (2) opportunity to rebut governmental assertions before a neutral decision maker. See Brief for Respondents at 48-49. The government contends that CSRTs confer more than a bare minimum of rights to detainees even though they are not U.S. citizens because CSRTs provide notice, the opportunity to rebut government evidence, and a neutral tribunal. See id. at 49-52. Therefore,even if the Suspension Clause were available to detainees held outside United States territorial sovereignty, because CSRTs are an adequate substitute, the MCA does not violate detainee rights. Id.

More importantly, the government and amici argue that the executive and legislative branches have determined that CSRTs and DTA review procedures appropriately balance detainee liberty interests against strong government and military interests. See Brief for Respondents at 10-11. Supporters of the government's position argue that the Court's traditional deference to Congress and the President should be particularly strong in this case because both elected branches support CSRTs. See Brief of Amici Curiae Retired Generals and Admirals at 13-14. Substituting CSRTs and DTA review in place of habeas hearings reflects both the President and Congress' judgment of how to protect ongoing military operations. See Brief of Amici Curiae for the Foundation for Defense of Democracies at 17-18. Amici also maintain that the detainees' asserted habeas rights would contradict national security concerns by exposing key classified evidence, revealing damaging intelligence to enemies during habeas litigation, and distracting military personnel from battlefield duties. Id. at 19-26.

The detainees and supporting amici respond that the Constitution's framers "narrowly defined [Congress's] power to suspend in order to preserve the writ [of habeas corpus] against both temporary and permanent evisceration." Brief of Amicus Curiae Professors of Constitutional Law at 3. The detainees maintain that "the Suspension Clause is a structural limitation on the power of Congress." Brief for Petitioners Al Odah at 23. In addition to limiting Congress's power, the detainees also argue that the Suspension Clause is a judicial remedy for unlawful executive branch detentions.See id.They contend that even if detainees do not have substantive constitutional rights, the judiciary may still examine the lawfulness of their detention at Guantanamo.See id. at 24. The detainees conclude that the Suspension Clause both protects the judicial power to scrutinize the lawfulness of executive branch detentions and prevents Congress from removing this judicial power except in the constitutionally-specified circumstances of rebellion or invasion. Id. They also emphasize that their six-year detention at Guantanamo renders the government's "case of military necessity" even weaker, and the need for habeas protection even stronger, than when the Court decided Rasul. Id. at 26.

IV. Do International Standards Apply to Petitioner Detainees?

Amici for the detainees argue that international law entitles detainees to certain fundamental rights, even if the Constitution does not apply to them. The International Humanitarian Law Experts ("IHLE") amicus brief argues that the Geneva Conventions, which the United States played a lead role in drafting, are universally accepted. See Brief of Amicus Curiae IHLE at 5. The Geneva Conventions aim to "protect[] persons who do not, or who can no longer, participate in hostilities," including prisoners of war and civilians. See id. at 6; Geneva Convention (III) Relative to Treatment of Prisoners of War. The IHLE brief notes in particular Common Article 3, which protects requires a "regularly constituted court" to provide judicial guarantees to those no longer engaged in hostilities. Id. at 13. The failure of the United States to follow the Geneva Conventions "weakens the entire international legal regime and invites other signatories to disregard their own treaty obligations." Id. at 18-19. By refusing to apply the Conventions to detainees, the United States harms its ability to insist that the Conventions protect Americans detained during overseas conflicts. See Brief of Amicus Curiae National Institute of Military Justice at 29-30.

Other amici argue that the United States violates international standards by withholding habeas rights from detainees. See Brief of Amicus Curiae United Nations High Commissioner for Human Rights at 19. The United Nations High Commissioner for Human Rights argues that Article 9 of the International Covenant on Civil and Political Rights ("ICCPR") requires that detainees must have access to a court that provides basic procedural guarantees of a fair hearing to review contest the legality of their detention. See id. "Continued detention without justification and review," the High Commissioner argues, is "inherently arbitrary." Id. at 5. CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review.� See id. at 24-27. Amici maintain that the United States ratified the ICCPR and is therefore bound by these agreed-upon international obligations.See Brief of Amicus Curiae Amnesty International, et al. at 2.

Amici for the government, however, counter that the ICCPR creates no obligations in United States federal courts, and is not applicable to nations' leased territories. See id. at 71-72, fn. 34. �Furthermore, in response to assertions that the United States is violating Article 3 of the Geneva Conventions, the government and amici argues that Article 3 does not apply to the Guantanamo detainees. Because Article 3 only applies to serious internal conflicts like civil wars, and does not apply to conflicts involving global terrorist groups. See Brief of Amicus Curiae American Center for Law and Justice at 27. The ACLJ also indicates that international obligations of the Geneva Conventions should not interfere with a state's internal affairs. Id. at 26-27. Furthermore, the government argues, the United States has not breached any international laws because it has provided the detainees with adequate due process rights. See Brief for Respondents at 12.� In fact, the government argues, the detainees have "greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war." Id. The government maintains that if the Geneva Conventions do apply, the Court should look to the standard under Article 5, which validates the substitution of CSRTs for habeas rights. Id. at 50-52.

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Conclusion

The Supreme Court's decision in Boumediene v. Bush and Al Odah v. United States may determine whether the MCA's suspension of the detainees' habeas rights violates the Constitution. Also at issue are whether the detainees have constitutional rights under the Suspension Clause and if so, whether the current CSRTs and DTA review are adequate and effective substitutes for the detainees' habeas rights. A decision for the government would effectively end currently pending or future habeas claims by non-citizen detainees held at Guantanamo, as well as strengthen the military's wartime powers by aligning the three branches behind Guantanamo Bay detention policies. On the other hand, a decision favoring the detainees could limit the military's wartime powers, expand the scope of judicial review of current and future detainees' habeas claims, and confirm the detainees' access to certain constitutional rights. Regardless of the outcome, the decision will likely be significant in clarifying both the scope of the detainees' rights and the military's wartime powers.

Authors

Prepared by: Hana Bae and Courtney Zanocco

Edited by: Heidi Guetschow

Acknowledgments

The authors would like to thank Professor Sital Kalantry and Professor David Wippman for their insights into this case.

Additional Sources

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