The Military Commissions Act of 2006 provided that all pending litigation involving detainees at Guantanamo Bay was removed from the jurisdiction of all U.S. Courts. The United States Court of Appeals for the District of Columbia Circuit upheld that provision today in a 2-1 decision after sitting on the cases for more than two years, well before the Military Commissions Act was passed. The cases are know by the name of the lead case, Boumedine.
Judge Randolph wrote for the majority joined by Judge Sentelle. Judge Rodgers dissented. This gist of the dispute between the majority and the dissent is over whether Guantanamo Bay is within or outside the United States, applying a different legal standard that was present in prior cases where Guantanamo Bay was treated as effectively within the United States.
The majority buys the argument that the MCA is not an unconstitutional suspension of the writ of habeas corpus because the writ, in 1789, did not extend to aliens held beyond the sovereign territory of the country.
Thus, they held that a suspension of the writ applies only to the rights of habeas corpus as they existed in 1789, and reject that findings of Rasul and Hamdan admittedly under the then not repealed statutory habeas corpus authority, that Guatanamo Bay was within the habeas corpus jurisdiction of the United States Courts, even after the Detainee Treatment Act of 1995.
In their view, the status of Guantanamo Bay is different for statutory purposes than for constitutional purposes, and that unless the constitutional minimum right is abridged, that there is no supsension of the writ of habeas corpus. This hinges on analysis of some ancient British habeas corpus cases.
The dissent argues that while the MCA purports to deny jurisdiction that it is invalid as a violation of the suspension clause.
It finds that the U.S. Supreme Court already ruled on the historical scope of the right of habeas corpus in Rasul and found that detainees at Guantanamo Bay were within that scope, quoting its opinion to that effect.
Finding that the habeas corpus extends to the detainees, the dissent then determines if the Combat Status Review Tribunals set up to replace habeas corpus in the courts is an adequate substitute and finds them wanting, because many of the rights found in a habeas corpus case are absent in a CSRT.
It then determines that Congress did not intend the act as a suspension of the clause (which is what the government argued on appeal), so the law is unconstitutional.
On remand the dissent would order the trial court to discern in evidentiary hearings if the government has put forth credible evidence that the person in question is an enemy combatant. If so the detention is held lawful, if not the person must be released.
Now the detainees will undoubtedly appeal to the U.S. Supreme Court. I think that the U.S. Supreme Court will take the case. It has taken these kinds of cases twice before, the nation expects it to do so, and in its order allowing a transfer of Jose Padilla to a criminal court is expressed interest in continuing to oversee the process. There is no procedural reason to delay at this point. It has reversed the D.C. Circuit on these cases before, and the dissent makes the case that the D.C. Circuit is simply defying the U.S. Supreme Court's ruling in Rasul. I will even hazard that the U.S. Supreme Court will find the Military Commissions Act to be unconstitutional. It may even do so by a supermajority.
If the U.S. Supreme Court rules in the ordinary course, the administration will have still been permitted to operate without due process for about six years.