Boumediene v. Bush; Al Odah v. United States

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. 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. However, the government points to the text of Section 7(b), which eliminates jurisdiction over all habeas petitions "without exception." 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!"

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. 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. 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.

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. � 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. 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. � In their amicus brief, the Legal Historians note that English courts in India issued writs prior to Britain's 1813 assertion of formal sovereignty. 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.

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. 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. 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.� Because the United States exercises no sovereignty over Guantanamo, the historical common law writ would be unavailable to aliens detained there. Further, the government contends that the common law writ of habeas corpus traditionally excluded prisoners of war. 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.'." 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.

The government also contends that Guantanamo detainees lack habeas rights under Johnson v. Eisentrager. Eisentrager, the government argues, denied habeas rights because the United States based on lacked sovereignty over the detention location and the German Nationals' lacked both voluntary connections to the United States and sovereignty over their detention location. Like Eisentrager's German nationals, Guantanamo detainees possess no voluntary connections to the United States and are held outside its sovereign territory. 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."

The detainees contend that Eisentrager does not apply to them because they are materially different from Eisentrager's German nationals. 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. 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.

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. 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. 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.

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. In particular, the detainees allege that government officials have sometimes pressured CSRT panels to change determinations that detainees were not enemy combatants. 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.

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. 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. 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. The government also notes that CSRTs can reject evidence considered unreliable, including evidence that may have involved coercion.

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. 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.

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. 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. 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 a remand to a new CSRT. The detainees argue that this fact alone makes CSRTs an inadequate substitute for habeas review.

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. 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. 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.

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 the strong government and military interests. 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. Substituting CSRTs and DTA review in place of habeas hearings reflects both the President and Congress' judgment of how to protect ongoing military operations. 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.

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." The detainees maintain that "the Suspension Clause is a structural limitation on the power of Congress." In addition to limiting Congress's power, the detainees also argue that the Suspension Clause is a judicial remedy for unlawful executive branch detentions.They contend that even if detainees do not have substantive constitutional rights, the judiciary may still examine the lawfulness of their detention at Guantanamo. 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. 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.

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. The Geneva Conventions aim to "protect[] persons who do not, or who can no longer, participate in hostilities," including prisoners of war and civilians. 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. 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." 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.

Other amici argue that the United States violates international standards by withholding habeas rights from detainees. 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. "Continued detention without justification and review," the High Commissioner argues, is "inherently arbitrary." CSRTs do not qualify as "courts" under the ICCPR, and they provide insufficient review.� Amici maintain that the United States ratified the ICCPR and is therefore bound by these agreed-upon international obligations.

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. Furthermore, in response to assertions that the United States is violating Article 3 of the Geneva Conventions, the government and amici argue 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. The ACLJ also indicates that international obligations of the Geneva Conventions should not interfere with a state's internal affairs. Furthermore, the government argues, the United States has not breached any international laws because it has provided the detainees with adequate due process rights. � 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." 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.