Guantanamo Detainees Return to Supreme Court for Third Time in Challenge to Military Commissions Act

March 5, 2007, Washington, DC and New York, NY - The Center for Constitutional Rights (CCR) joins co-counsel today in petitioning the U.S. Supreme Court for a writ of certiorari, asking it to review a lower court decision dismissing the cases Al Odah v. United States and Boumediene v. Bush filed on behalf of detainees at Guantanamo Bay. The Supreme Court is being asked to grant review and hear the cases on an expedited basis in May.

CCR, which represents many of the detainees at Guantanamo and coordinates the work of nearly 500 pro bono attorneys, is seeking Supreme Court review on behalf of many of the same men who were part of its landmark case Rasul v. Bush. The Supreme Court held in Rasul in 2004 that Guantanamo is not beyond the reach of U.S. law and that the detainees there have the right to challenge their detention in U.S. courts, and directed the lower courts to consider the merits of those challenges. The Court invalidated the Guantanamo military commissions process in a habeas challenge brought by a detainee in Hamdan v. Rumsfeld in 2006. This would be the third time the Court addresses challenges to the legality of government practices at Guantanamo.

These would be the first cases argued before the Supreme Court challenging the constitutionality of the Military Commissions Act of 2006 (MCA). The MCA, which was signed into law by President Bush on October 17, 2006, is the second attempt by the Bush administration to strip detainees of their statutory right of access to the courts through habeas corpus, a right that the Supreme Court affirmed both in CCR's landmark case Rasul v. Bush in 2004 and in Hamdan v. Rumsfeld in 2006. Attorneys for Hamdan filed papers last week seeking review by the Court again as well. Despite the Court's two previous rulings, nearly 400 detainees still remain imprisoned at Guantanamo Bay without charge or trial, never having had any meaningful chance to show that they deserve to be released.

On February 20, 2007, a divided panel of three judges of the D.C. Circuit Court of Appeals ruled 2-1 that the Guantanamo detainees have no constitutional right to habeas corpus review of their detentions in federal court. Because the court also found the MCA eliminated any statutory right of access to the courts under habeas corpus, it dismissed their cases. The Center for Constitutional Rights is challenging the majority's decision.

"We look forward to being heard by the Supreme Court as soon as possible," said Shayana Kadidal, supervising attorney of CCR's Guantanamo Global Justice Initiative. "The Supreme Court has twice ruled in favor of the detainees. Yet hundreds of men have been imprisoned for more than five years without ever having a fair hearing because the administration, the lower courts and Congress have effectively ignored those rulings. The Court needs to make plain for the third time that it meant what it said."
Attorneys submitted an accelerated briefing schedule to ensure that the cases will be heard before the Supreme Court goes on summer recess; otherwise, the question of whether Guantanamo detainees still have the right to challenge their indefinite detention through habeas corpus might go unanswered until 2008. The Solicitor General's Office has agreed to expedited briefing of CCR's request that the Supreme Court hear the case, and will file its response on March 21, 2007. The parties have asked the Court to consider the detainees' request for review at its next conference on March 30, 2007. Attorneys for the detainees have also proposed that briefing on the merits of the cases be completed by May 1, and that the Supreme Court hear oral argument on May 7. Under this schedule, the Court would likely hand down a decision in June or July 2007.

CCR Executive Director Vincent Warren said, "It has been almost three years since the Supreme Court's Rasul decision and not a single detainee has had a meaningful chance to argue in federal court that he deserves to be released. Every significant legal issue here was resolved by the Supreme Court in 2004. Now it should restore the right to habeas corpus and give our clients their day in court."

Al Odah v. United States, filed jointly by CCR, co-counsel Shearman & Sterling LLP, and a number of other law firms, consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court's Rasul decision. The Boumediene appeal, filed by Wilmer Cutler Pickering Hale and Dorr LLP and heard with a case brought by Clifford Chance LLP, is on behalf of six Bosnian-Algerian humanitarian workers seized by the U.S. military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them. In Al Odah, Senior U.S. District Court Judge Joyce Hens Green held that detainees possess "the fundamental right to due process of law under the Fifth Amendment" and that certain detainees are protected by the Geneva Conventions. U.S. District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were argued together on appeal. The Court of Appeals took nearly two years to decide the cases.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at


Last modified 

October 23, 2007