Part II: Hamdan v. Rumsfeld, the Military Commissions Act, and Boumediene v. Bush
The Hamdan case, which reached the Supreme Court in 2006, involved two critical and distinct legal issues. Salim Ahmed Hamdan, alleged to have been Osama Bin Laden's driver, had been charged with "conspiracy" in a military commission and had filed a habeas corpus petition challenging the legality of the commission system. The threshold question was whether the Court had jurisdiction over Hamdan's case - or any Guantanamo case, for that matter. The Bush administration argued that the Detainee Treatment Act (DTA) had stripped federal courts of jurisdiction over all habeas corpus petitions filed by Guantanamo detainees. Hamdan, in turn, argued that the DTA foreclosed only future challenges, and that, in the alternative, any such revocation by Congress of the right to file habeas petitions would itself be an unconstitutional suspension of the writ.
The second issue in the case involved the legality of the president's Military Commission system. Hamdan contended that the president lacked the unilateral authority to create a military trial system out of step with U.S. and international law and inconsistent with the Uniform Code of Military Justice. The administration claimed that the president's wartime authority as Commander in Chief granted him the power to establish military commissions to prosecute detainees in the "war on terror."
The Court's decision was a stunning repudiation of the administration's legal theories. First, the Court held that its jurisdiction over pending cases was intact, and that the DTA applied only prospectively - leaving for another day the question whether the Constitution would permit Congress to eliminate habeas corpus rights for Guantanamo detainees. Second, the Court held that the president had exceeded his authority by concocting a military commission system that disregarded the minimum safeguards required by the Geneva Conventions, and ordered that the military trials be halted.
The decision severely undermined the edifice of nearly all of the administration's post-9/11 legal claims, including its claim that it could eavesdrop on American citizens in contravention of the Foreign Intelligence Surveillance Act.
However, the basis of the Court's opinions in both Rasul and Hamdan rested on the administration's disregard of Congress - not of the Constitution. And so, following the Hamdan rebuke, the administration persuaded a compliant Republican Congress to enact the disgraceful Military Commissions Act (MCA) of 2006. The MCA, passed in the run-up to the midterm elections, purported to overrule both the Rasul and Hamdan decisions: Rasul, by expressly revoking the right of Guantanamo detainees to bring habeas corpus petitions, and Hamdan, by authorizing a military commission system nearly identical to the one struck down by the Supreme Court.
And so, after four years, the legal challenges were seemingly back to square one. The military commission trials recommenced - only to be halted, yet again, when the commissions' presiding officers unexpectedly declared that the new procedures failed to comply with the MCA.
Of greater significance, the administration once again sought the dismissal of all Guantanamo habeas petitions then pending in the lower courts. In Boumediene v. Bush, the Court of Appeals for the D.C. Circuit, in a 2-1 decision, agreed with the administration that the MCA had stripped Guantanamo detainees of the right of habeas corpus - and ruled, for the first time, that the Constitution offered no protection to the detainees against Congress's suspension of the writ. The same court held that the detainees should contest their detention through the Combatant Status Review Tribunal (CSRT) process - with the option for a limited circuit court review if they were dissatisfied with the results.
At first, the High Court declined to hear the detainees' appeal in Boumediene - preferring to wait until a lower court had reviewed the CSRT process. But in June, the Court announced that it would hear the appeal after all. (Many observers believe that the Court was influenced by the affidavit of a military reserve officer who participated in the CSRT process and described it as an effective sham. This fall, the Court will finally consider whether the Guantanamo detainees have a constitutional right to challenge their detention through habeas corpus petitions.
If the Court reverses the D.C. Circuit and upholds the historic right of habeas corpus against congressional interference, the Guantanamo endgame will enter its final phase. Once habeas is restored, the government will be compelled, at long last, to provide evidence to a neutral court supporting its assertion that the detainees are, uniformly, "enemy combatants." And if the quality of that evidence resembles the government's submissions in the CSRT process, no judge will conceivably permit the indefinite detentions to continue.
But the administration is unlikely to allow such a public dismantling of its claims that Guantanamo houses the world's most dangerous terrorists. If yet another Supreme Court loss seems likely, watch for renewed White House attempts at a political solution to the Guantanamo mess.