Supreme Court Oral Argument on Constitutionality of the Military Commissions Act

On Wednesday, December 5, 2007, the US Supreme Court will hear argument in Boumediene v. Bush, challenging whether the Military Commissions Act of 2006 validly stripped federal habeas jurisdiction over Petitioners imprisoned at the United States detention facility at Guantanamo Bay, and whether Petitioners’ indefinite military imprisonment as “enemy combatants” lacks Congressional authorization and violates due process.

Since January 2002, the United States has held nearly 800 people, from more than 40 countries, in military custody at the U.S. Naval Base at Guantanamo Bay, Cuba.  Some of those detained at Guantanamo were taken into custody during the war in Afghanistan. Others, including the petitioners in the Boumediene case, were captured in places far from any battlefield, including Bosnia, Gambia and Thailand.  About 385 detainees remain at Guantanamo today.  In June 2004, the Supreme Court decided Rasul v. Bush, 542 U.S. 466 (2004), holding that individuals detained at Guantanamo have a right to judicial review of the legality of their detention in U.S. courts.  Two years later, in June 2006, the Supreme Court decided Hamdan v. Rumsfeld, 542 U.S. 507 (2006), holding that the military commissions set up by the Bush Administration to try the detainees at Guananamo Bay lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions.

Shortly after the Hamdan decision, in July 2006, I was asked to testify before the US House Armed Services Committee, which was considering legislation to respond to the Supreme Court’s holding.  My testimony is available at: 

During my testimony, I stated:

“I understand that some in this room may favor the idea of responding to Hamdan by enacting legislation that would simply give Congressional authorization to the President’s existing Military Commission system without changing a thing.  It is true that  for purposes of domestic law, Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later-in-time statute that manifests a clear intent to violate the provisions of these venerable international humanitarian law treaties, to which the United States is a ratifying party.  See Breard v. Greene, 523 U.S. 371 (1998).  However, Congress has always been extremely reluctant to use this power, as it renders the United States in breach of its international obligations with often serious international legal and diplomatic consequences.  Do we really want to be the only country in the world to go on record as abrogating the Geneva Conventions?   Since the United States military is more forward-deployed than all other nations combined, strict adherence to the Geneva Conventions is more important to us than any other nation.  Since the United States is a world leader, our practice is followed by other nations. If we try detainees in violation of internationally-required fair trial procedures, we increase the risk that our own troops and those of our allies (such as Israel) will be subject to similar mistreatment at the hands of others. And if by approving departure from the requirements of the Geneva Conventions, Congress is perceived as expressing disdain for some of the most important treaties of the international system, it will seriously complicate our diplomatic efforts to solve the Lebanon crisis, to eventually withdraw from Iraq, and to maintain support for our efforts to suppress terrorism worldwide. ”

A few months later, on October 17, 2006, the Military Commissions Act (MCA), was signed into law.   On the one hand, I was relieved to see that the MCA does not on its face disavow or abrogate the Geneva Conventions.  In fact, the Act declares that the military commissions created under the act are in full compliance with the Geneva Conventions (though many experts including this writer believe the military commission procedures are not in fact consistent with what is required by the Geneva Conventions).  On the other hand, the Act provides that no one tried under the military commissions may invoke the Geneva Conventions as a source of rights, and it purports to strip detainees deemed to be “unlawful enemy combatants” of the opportunity to challenge their detention or their trial before the military commissions in U.S. courts.

On November 1, 2006, counsel for Guantanamo detainees in Boumediene v. Bush, and Al Odah v. United States, two related cases, filed legal briefs in the D.C. federal appeals court challenging the habeas stripping provision (among other grounds). In February 2007, the D.C. federal appeals court rejected the detainees’ arguments that the MCA provision was unconstitutional. The Guantanamo detainees appealed the court’s decision to the U.S. Supreme Court, which denied certiorari (declined to hear the appeal) on April 2, 2007.  In an unusual move, however, the Supreme Court reversed that decision on June 29, 2007.  The case, which will be argued this week, will decide whether Petitioners-and all other Guantanamo detainees-have meaningful access to the courts to challenge their imprisonment.  The Briefs for the Petitioners, the US Government, and Amicus are available at: