The U.S. Supreme Courts’ docket contains new reviews of the rights of detainees held by the United States in the “war on terror.” The Supreme Court has been reviewing the basic tenets of law pertaining to the status of prisoners at the detention facility at the U.S. naval base in Guantanamo Bay, Cuba more or less since its current existence was established after the legislation was passed launching the “war on terror.” In a military order issued on November 13, 2001, U.S. president George W. Bush deemed that detention criteria would be decided by the executive branch and ordered military tribunals to be established to examine the cases of detainees.
In its first series of reviews, the Supreme Court ruled that it is not within the power of the executive to issue military tribunals and declared the system in place at Guantanamo Bay was in violation of the constitution – and subsequently international law. As a consequence, Congress passed the Military Commissions Act (MCA) in 2006, which both established a military commission to review detainee cases and stripped all U.S. civilian courts of jurisdiction over the Gauntanamo cases. At least one of the new batch of cases – Boumediene v. Bush – challenges the validity of the MCA to strip “federal court jurisdiction over habeas corpus petitions filed by foreign citizens” at Guantanamo Bay.
The White House argues that the MCA provides appropriate remedies for habeas petitions by way of the combatant status review tribunals – an instrument by which detainees designation is reviewed. Various legal teams for detainees argue, however, that the MCA did not meet constitutional provisions for what amounts to a suspension of habeas corpus. According to Article 1, Section 9, of the U.S. constitution, Congress shall not suspend habeas except in “cases of rebellion or invasion”, which is arguably not the case in the United States.
Several groups have filed other briefs for the Courts review. A brief filed by European parliamentarians asks whether the current legal circumstances would be deemed valid outside the constructs of the “war on terror.” Another brief filed on behalf of countries of the British Commonwealth states that habeas has been in place at least since the 18th century in English law and that the appropriate venue for any status review should take place in the civilian courts. To make assertions otherwise places the system heavily in the hands of the executive branch – which is runs counter to the notions of democracy.
The U.S. detention facility for foreign nationals suspected as “enemy combatants” was established at the naval facility at Guantanamo Bay, Cuba because the Bush administration viewed the jurisdiction of the federal courts did not reach into non-U.S. territories. The Supreme Court refuted that claim in 2004, stating the lease on the Cuban territory was the functional equivalent of U.S. territory, and customary U.S. law applies – including habeas.
