The brief, filed late Tuesday, argues that a 2006 law that stripped the federal courts of jurisdiction to hear habeas corpus petitions from Guantánamo detainees did not violate the Constitution because foreign enemy combatants had no right to habeas corpus in the first place.
The new case, Boumediene v. Bush, No. 06-1195, tests the adequacy of the alternate legal system that the administration created to handle the detainees after the Supreme Court ruled unexpectedly in 2004 that federal court jurisdiction did extend to Guantánamo, the Navy base that sits on land the United States has leased from Cuba since 1903.
The administration argues that the 2004 decision, Rasul v. Bush, is no longer relevant because its jurisdictional ruling was a matter of statutory interpretation and Congress has subsequently amended the habeas corpus statute to remove jurisdiction. The Rasul decision did not recognize any constitutional rights, the 74-page brief asserts.
The administration’s brief, signed by Solicitor General Paul D. Clement, responds to briefs filed in late August on behalf of the two groups of detainees who are seeking a full judicial review of their designation as enemy combatants. Lawyers for the detainees will have a chance to respond before the case is argued in early December.
The case does not include a challenge to the military commissions that the administration plans to use to try several dozen detainees for war crimes. A test of those commissions is proceeding on a slower track before the federal appeals court here. Last week, the justices declined to hear a military commissions case this term.
The administration’s arguments in the Boumediene case mirror those it made successfully before the United States Court of Appeals for the District of Columbia Circuit. That court ruled in February that habeas corpus petitions filed by the two groups of detainees must be dismissed for lack of jurisdiction. The Supreme Court announced on the final day of its last term in June that it would review that decision, a highly unusual about-face two months after having turned down the detainees’ appeal.
If the Supreme Court agrees with the appeals court that the detainees have no underlying right to habeas corpus, that will be the end of the case. The detainees would then return to the appeals court to contest their designation as enemy combatants. That designation was previously affirmed in individual hearings known as Combatant Status Review Tribunals.
Under two recent statutes, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, the District of Columbia Circuit is to hear these cases under special rules that make its review considerably more limited than in a typical case. The parameters of that review are being thrashed out in a separate appeals court case, Bismullah v. Gates.
If the Supreme Court rejects the appeals court’s analysis and rules that Guantánamo detainees have an underlying right to habeas corpus, the precise nature of the review tribunals and the appeals process could become important. The question will be whether the stripping of federal court jurisdiction amounted to an unconstitutional “suspension” of habeas corpus.
The Supreme Court has ruled that habeas corpus can be eliminated if an adequate alternative process is provided. The detainees’ lawyers argue that the alternative process is severely deficient.
The administration argues in its new brief that it is both “adequate and effective.”