Counsel for the foreign detainees say the courts must intervene in the process to control congressional and presidential authority. Following earlier court rulings, congressional legislation stripped federal courts of their ability to hear detainee cases, arguing the Military Commissions Act is the proper judicial medium. Congress enacted the Military Commissions Act in response to the courts ruling in Hamdan v. Rumsfeld that said the former tribunal system enacted by the president was unconstitutional because that power is given to Congress. The argument stems on the objectivity of the panel. Critics argue the examining panel is not impartial and that those prosecuted are denied access to key evidence.
The representative for the U.S. government, Solicitor General Paul Clement, argues that foreigners held outside the United States “have no constitutional rights to petition our courts for a writ of habeas corpus.” Yet, the justices offered to review the latest package of cases in June following statements from a military officer who criticized the process designating the legal status of detainees. The Combatant Status Review Tribunal is a process by which a military panel determines if detainees are subject to prosecution under the Military Commissions Act.
A key issue is an examination of the legal jurisdiction of U.S. law at Guantanamo. A previous case, Rasul v. Bush, examined the applicability of U.S. sovereignty in a foreign nation. In Rasul, the Court found that U.S. law extended to the naval base, meaning basic civil liberties , including habeas corpus — are extended to Guantanamo Bay. Justice Stevens argued that habeas corpus extends to “all … dominions under the sovereign's control.” “Guantanamo Bay is in every practical respect a United States territory,” Kennedy said.
The Supreme Court has released audio of the oral arguments here.