Lynne Kates [attorney, Guantanamo Global Justice Initiative, Center for Constitutional Rights]: "In their decision in Al Odah/Boumediene on Tuesday, the Court of Appeals for the DC Circuit produced a heavily formalist decision upholding the Military Commissions Act of 2006 and declaring the Guantanamo detainees' petitions for habeas corpus outside the jurisdiction of the court. For the two judges in the majority (Judges Randolph and Sentelle), the decision hinged on whether the historical understanding of the writ of habeas corpus in 1789 extended beyond sovereign territory. Even in that context, heavily weighting form over substance, the court failed to apply the Supreme Court's test as to whether Guantanamo Bay Naval Base - where the United States controls all aspects of civilian and military life, and where no other legal system applies - qualifies as territory of the United States for the purpose of extending the writ. In that framework, the court determined that the detainees' petitions were outside the court's jurisdiction in light of the jurisdiction-stripping provisions of the Military Commissions Act of 2006. The dissent, by Judge Rogers, held that Congress had exceeded its powers under the Suspension Clause in stripping jurisdiction from the federal courts to hear Guantanamo detainees' petitions for habeas corpus, and that the MCA was therefore invalid.
In their decision, the Court of Appeals panel majority substantially ignored the Supreme Court's decision of 2004 in Rasul v. Bush. We expect to file a petition for certiorari within the next two weeks, and we have every expectation of a hearing in the spring. This will be the third time the Supreme Court must intervene to preserve the rule of law from abuse at Guantanamo Bay, and it marks five years of detention for our clients at Guantanamo, who are the victims of policies that uphold executive lawlessness. There is a pressing need for quick Supreme Court review in this case; our clients have been held without recourse for over five years, despite the Court's decision nearly three years ago in Rasul. The Court of Appeals took nearly two years - eighteen months - to issue a ruling in Al Odah/Boumediene, and every day longer is yet one more day that justice is delayed, and justice denied, for the detainees at Guantanamo Bay."