The court is likely to announce within days whether it will hear appeals filed on behalf of two groups of detainees who have been held at the United States naval base in Cuba, many since early 2002. Their lawyers are asking the justices to strike down a new law that stripped the federal courts of jurisdiction to hear challenges to the validity of the detainees’ confinement.
The cases are appeals of a ruling last month by the federal appeals court here, which by a 2-to-1 vote rejected a challenge to the part of the Military Commissions Act of 2006 that wiped away the courts’ jurisdiction.
The appeals do not take direct aim at the military commissions themselves. Unlike David Hicks, the Australian whose surprise guilty plea this week aborted the first scheduled military commission trial, none of the dozens of detainees bringing these two cases have been charged with a crime or designated for trial by a military commission.
Only 10 of the 385 prisoners at Guantánamo have been formally charged. The detainees in the two cases are far more typical than is Mr. Hicks of the men — citizens of countries from Canada to Bosnia to Yemen to Afghanistan — who remain in custody as enemy combatants.
Seen from one angle, the question for which they seek the Supreme Court’s attention is largely procedural: The appeals court dismissed their habeas corpus petitions for lack of jurisdiction without reaching the merits, and the detainees are simply asking the justices to reinstate the cases and order the appeals court to decide them.
But from another angle, the cases challenge the core assumption on which the Bush administration based its legal strategy for handling the hundreds of prisoners the government acquired on and off the battlefield, in Afghanistan, Pakistan, Muslim areas of eastern Europe and elsewhere in the months after Sept. 11, 2001: By holding them outside the boundaries of the United States, it could keep them away from the protection, or at least the scrutiny, of the federal courts.
“At issue in this case is nothing less than this country’s commitment to the rule of law,” says the brief filed for one group of detainees, six Algerians seized by the Bosnian police in Sarajevo in 2001.
This group, in a case called Boumediene v. Bush, No. 06-1195, joined by 39 other detainees, most from the Middle East, in a case called Al Odah v. United States, No. 06-1196, asks the justices to hear the appeals and to schedule the hearing on an expedited basis that would enable the court to issue a decision by the end of the current term in early summer.
The Bush administration, in response, is telling the court that there is no reason to hear the appeals at all, let alone on an expedited basis. It maintains that the appeals court was correct to find that noncitizens outside the United States did not have a right to habeas corpus, and that consequently Congress’s action in stripping the courts of jurisdiction to hear habeas corpus petitions did not raise any constitutional problem.
Further, the administration points out that the detainees have not yet availed themselves of the opportunities Congress did make available to challenge their designation as enemy combatants. Congress has already afforded the detainees “an unprecedented degree of access to our courts in wartime,” Solicitor General Paul D. Clement told the court in the government’s brief.
The adequacy of those procedures lies at the heart of the case that lawyers for the detainees are trying to make. They argue that the appeal rights provided by two federal statutes, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, are so limited that they cannot be considered adequate substitutes for habeas corpus.
The debate over the adequacy of the alternative procedures is anchored in the Supreme Court’s precedents on habeas corpus. The right to habeas corpus, a legacy of medieval England that enables prisoners to go before a judge to challenge the legitimacy of their detention, is protected by Article I of the Constitution. That article’s “suspension clause” provides that Congress may not suspend “the privilege of the writ of habeas corpus” except in “cases of rebellion or invasion.”
The Supreme Court has allowed Congress to deviate from a literal reading of the suspension clause, upholding statutes that provide alternatives to habeas corpus as long as those alternatives are “both adequate and effective,” as the court put it in a 1977 decision concerning appeal rights for prisoners in the District of Columbia.
So the question of the adequacy of the system Congress has devised for the Guantánamo detainees could be highly pertinent. The issue is whether a detainee can bring a meaningful appeal of a determination by the Combatant Status Review Tribunal, an administrative board composed of military officers, that the president had properly designated him an enemy combatant, subject to indefinite detention.
Under the military’s rules for Guantánamo Bay, every detainee gets an initial Combatant Status Review Tribunal hearing, as did Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11 attacks, this month after his transfer to Guantánamo Bay. The tribunal’s determination, while a necessary first step, is separate from the question of criminal charges and trial before a military commission.
Congress has provided for review of a tribunal determination solely in the United States Court of Appeals for the District of Columbia Circuit. It is a limited form of review that requires the appeals court to defer to the tribunal’s factual findings and does not permit the detainee to submit new evidence. The detainees argue that this falls far short of the scope of review that a federal court would give to a habeas corpus petition. The government argues that it exceeds any constitutional requirement.
The administration’s more basic argument, made to the Supreme Court in opposition to the detainees’ appeals, is that the debate is irrelevant because habeas corpus does not apply to those held at Guantánamo Bay. The administration’s brief puts forward a limited interpretation of the Supreme Court’s 2004 decision in Rasul v. Bush, a case brought by some of the same detainees who are now before the court, which held that the federal courts did have jurisdiction to hear Guantánamo detainees’ habeas corpus petitions. That was simply an interpretation of the habeas corpus statute as it existed then, Mr. Clement tells the justices, and in response Congress revised the statute last year in the Military Commissions Act.
The detainees’ appeals are supported by briefs from a group of former federal judges and government officials and from Senator Arlen Specter, the Pennsylvania Republican who was chairman of the Senate Judiciary Committee when the Military Commissions Act was passed last September. Mr. Specter’s brief, perhaps inadvertently, captures the legal and political contortions that have brought the debate over Guantánamo back to the Supreme Court’s door.
Despite saying publicly at the time that the jurisdiction-stripping provision was “patently unconstitutional,” Mr. Specter was one of 65 senators to vote for the bill. Now he is urging the justices to strike down the statute’s “illegal suspension of the great writ” in order “to avoid an incongruous legal ‘black hole’ at Guantánamo.”