Legal Opinions - U.S. Supreme Court: June 30, 2008

Daily Record, The (Baltimore), Jun 30, 2008

Application of that framework revealed, first, that petitioners' status was in dispute: They were not American citizens, but denied they were enemy combatants; and although they were afforded some process in CSRT proceedings, there had been no Eisentrager-style trial by military commission for violations of the laws of war.

Second, while the sites of petitioners' apprehension and detention weighed against finding they had Suspension Clause rights, there were critical differences between Eisentrager's German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government's absolute and indefinite control over the naval station.

Third, although the Court was sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, those factors were not dispositive because the Government presented no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military's mission in post-War Germany.

Petitioners were therefore entitled to the habeas privilege, and if that privilege was to be denied them, Congress must act in accordance with the Suspension Clause's requirements. Cf. Rasul, 542 U.S., at 564.

Because the DTA's procedures for reviewing detainees' status were not an adequate and effective substitute for the habeas writ, MCA [section]7 operated as an unconstitutional suspension of the writ.

Given its holding that the writ did not run to petitioners, the D.C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. The Court usually remands for consideration of questions not decided below, but departure from that rule was appropriate in "exceptional" circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years.

Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court's two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U.S. 372, and United States v. Hayman, 342 U.S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provided little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort.

In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as was evident from the unequivocal nature of MCA [section]7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," DTA [section]1005(e)(2)(C), and from the absence of a saving clause in either Act.