The Petitioner’s Briefs have been submitted in Al-Odah v. US and Boumediene v. Bush, the two high-profile detainee cases that the court has accepted for review. Thanks to SCOTUSblog, everyone can access the Al-Odah briefs here (Al-Odah) and here (El-Banna) and the Boumediene brief here. I’ll use Al-Odah for the majority of my analysis but from a brief overview of the three briefs, the issues present in these cases seem to be nearly identical. Boumediene, however, goes one step farther than Al-Odah in asking whether or not Congress can legitimately categorize the Petitioner as an enemy combatant.

In April, the court refused to grant certiorari to the detainees involved in Al-Odah and Boumediene. Nearly 3 months later the court reversed its original decision when Justices Kennedy and Stevens flip-flopped by joining Justices Ginsburg, Souter, and Breyer in accepting review.

Justices Stevens, Breyer, Souter, and Ginsburg obviously know something that we don’t. Their willingness to take this high-profile and relatively straight-forward case indicates that they believe that they can win this case and get the requisite five votes.

Justice Kennedy is only slightly harder to read. He penned a concurring opinion in Hamdan v. Rumsfeld that displayed a level of sympathy with his liberal colleagues that should scare the conservatives on the Court. Despite his ruling in Hamdan, his hesitancy to accept this case until all ‘available remedies’ had been exhausted could indicate his lack of willingness to succumb to political pressure from either side of the Court. If he had chosen to side with his conservatives, he would have voted against accepting review and if he had a desire to side with his most liberal colleagues, he would voted to ‘grant the petitions for certiorari and expedite argument’ back in April.

Al-Odah argues that the Military Commission Act (MCA) violates the Suspensions Clause of the Constitution which reads “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” He contends that in the absence of a rebellion or invasion, Congress cannot deny him the Great Writ. First he appeals to the originalist tendencies of the Justices:

The Suspension Clause protects the writ as it existed in 1789. The writ as it existed in 1789 depended not on formal notions of sovereignty, but on the “exact extent and nature of the jurisdiction or dominion exercised” by the government. Rasul, 542 U.S. at 482 (citation omitted).

Moreover, before 1789, the writ was available to individuals who possessed no rights under positive law. Even assuming the Guantánamo detainees have no such rights, they are within the reach of the writ as existed in 1789, and are therefore entitled to the processes and remedies afforded by habeas.

Al-Odah focuses primarily on the habeus claims of the detainees but also briefly mentions the unjust ‘enemy combatant’ classification (the Guantánamo detainees also should be given the opportunity, in a habeas corpus hearing, to challenge the government’s designation of them as ‘enemy combatants’ under international law.)

Boumediene echoes the habeus argument (and elaborates on originalist analysis) but spends a considerable amount of time rejecting the enemy combatant label. He asks the court to decide whether or not “Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.”

I wouldn’t be surprised to see a(nother) landmark decision in favor of the detainees. I also expect the Court’s liberal/conservative dichotomy to prevail with Justice Kennedy siding with the liberal members of the Court. The Supreme Court is sure to find that the President has laughed in the face of the Court after their decision at the end of the 2005 Term in Hamdan v. Rumsfeld. This will be a classic example of the Judiciary v. the Executive but will pale in comparison to some of epic showdowns in the past like Youngstown Sheet and Tube Co..


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