Boumediene, Lakhdar, et al. v. Bush, George, et al. / Al Odah, Khaled, et al. v. U.S.

The Supreme Court has drawn intense attention by agreeing to weigh in for a third time in the ongoing battle between the Bush Administration and Guantanamo Bay detainees over the prisoners' right to bring writs of habeas corpus.

The Court rejected the prisoners' petition for certiorari in April, but reversed course two months later. Observers have speculated that at least one Justice was moved to change his certiorari vote when the detainees' lawyers filed a court paper in the underlying litigation outlining the claims of an Army lawyer that the panels provided as alternates to habeas were "shams."

The consolidated cases, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 and 06-1196, represent the ongoing struggle between the executive and legislative branches on the one hand, and the judicial branch on the other, to define the scope of the government's power to conduct the war on terror.

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there.

The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba.

Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition.

The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal but the Supreme Court reversed in Rasul v. Bush, 542 U.S. 466 (2004), which held that the habeas statute extends to non-citizen detainees at Guantanamo.

Congress resopnded to the Rasul decision in 2005, passing the Detaininee Treatment Act of 2005, which essentially stripped courts of jurisdiction over habeas cases filed by Guantanamo detainees. The detainees insisted that the DTA did not apply to their cases, which were pending before its passage. The Supreme Court ultimately agreed, in Hamdan v. Rumsfeld, ___ U.S. ___, 126 S.Ct. 2749 (2006).

Congress went back to the drawing table, passing the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear pending habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants.

When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "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."

The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases, without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld.

The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military base in Cuba does not qualify as inside the geographic borders of the U.S.