J. Wells Dixon [Staff Attorney, Center for Constitutional Rights and lawyer for several Guantanamo prisoners]: "The Center for Constitutional Rights (CCR) returned to the United States Supreme Court yesterday for arguments in Al Odah v. United States and Boumediene v. Bush, which will likely decide the fate of about 300 men held without charge or trial in Guantanamo Bay. At stake are questions directly impacting our government's delicate system of checks and balances, including whether the Executive may hold prisoners indefinitely in military custody without the right to appear before a neutral court and argue for their release.

Former Solicitor General Seth Waxman, counsel for six Bosnian-Algerians, argued that Guantanamo prisoners have a constitutional right to habeas corpus that entitles them to relief because (i) all have been confined for six years without meaningful notice of the grounds for their detention or opportunity to challenge those grounds; (ii) under the D.C. Circuit's decision in these cases, the prisoners have no prospect of that opportunity; and (iii) all of the prisoners claim they are innocent of any wrongdoing. The principal question for the Court, Waxman argued, is whether limited review under the Detainee Treatment Act of 2005 (DTA) of "enemy combatant" determinations by Combatant Status Review Tribunals (CSRTs) provides a constitutionally adequate substitute for habeas. It does not, he said, because the CSRTs are structurally flawed and incapable of being cured through DTA review.

A majority of the justices appeared to agree with Waxman that the threshold question of whether the prisoners in Guantanamo have a constitutional right to habeas had already been decided in the Court's 2004 decision in Rasul v. Bush, a case brought by CCR. Congress has since attempted to reverse Rasul by enacting the DTA and the Military Commissions Act of 2006 (MCA), which purported to eliminate statutory habeas jurisdiction over Guantanamo and make the DTA process the sole form of review available in federal courts. Prompted by questions from Chief Justice John Roberts and Justice Antonin Scalia, current Solicitor General Paul Clement argued for the government that Guantanamo prisoners have no constitutional rights under the DTA and MCA because they are non-citizens held outside the sovereignty of the United States. Most of the justices seemed to reject that argument, however, including Justice David Souter who remarked at one point during yesterday's argument that the Court was "past that point" and the government was effectively rearguing Rasul. Rasul held that the reach of habeas depended on practical questions concerning exclusive jurisdiction and control over Guantanamo Bay rather than formal notions of territorial sovereignty. Justice Ruth Bader Ginsburg noted that the lease agreement granting the United States exclusive jurisdiction and control over Guantanamo was not something that Congress had changed by enacting the DTA (section 1005(g) of which purports to define the "United States" to exclude Guantanamo) and MCA.

Several justices also questioned the government's alternate argument that DTA review is a constitutionally adequate substitute for habeas. Justice Souter questioned whether meaningful DTA review is possible because the CSRT panels were not neutral and had denied prisoners the remedy of release. He specifically noted the case of Ali, a Chinese Uighur who was initially found by a CSRT not to be an enemy combatant, but, rather than be released, was subjected to further CSRTs until an enemy combatant finding was eventually obtained. Justice John Paul Stevens likewise questioned the neutrality of CSRT participants and the prisoners' lack of counsel during the hearings. Justice Stephen Breyer then asked whether a Guantanamo prisoner could argue under the DTA that, regardless of a CSRT finding, the Constitution does not allow him to be held for six years without charge or trial. When Clement responded that a prisoner could not make that argument under the DTA, Justice Breyer noted that was "exactly!" his point, and expressed skepticism that such a limitation could be constitutionally adequate.

Justice Anthony Kennedy, whose vote will likely be critical to the prisoners' challenge, also appeared to side-step the question of whether Guantanamo prisoners have a constitutional right to habeas. He appeared to assume that right and instead explored whether DTA review, if found to be a constitutionally inadequate substitute for habeas, could be cured of any defect by the D.C. Circuit. Appearing almost to abandon its argument that Guantanamo prisoners have no constitutional right to habeas, the government ultimately asked Justice Kennedy and other members of the Court to remand the cases to the D.C. Circuit and allow that court to supply any constitutionally required guidance to the CSRTs. The Court could do that, the government urged, without expressly reversing the D.C. Circuit's decision that Guantanamo detainees have no constitutional rights.

In his rebuttal, Waxman raised the case of German resident Murat Kurnaz as an illustration of why the CSRTs are fatally flawed and cannot replace full habeas review. Kurnaz was held for several years at Guantanamo because of his affiliation with an alleged suicide bomber, who, his counsel later learned, was in fact alive and living an ordinary life in Germany. Kurnaz's CSRT did not disclose this fact, and DTA review would not have allowed for the introduction of this "new evidence" — evidence obviously critical to the question of whether he was properly detained. Thankfully, Kurnaz was released from Guantanamo several years after his exoneration. Sadly, several hundred innocent men remain imprisoned in Guantanamo, including the Uighur Ali, waiting for the Supreme Court to decide whether they will have their day in court."