Guantanamo Bay in the US Supreme Court this week

This Wednesday the US Supreme Court will hear arguments in the consolidated cases of Al-Odah v United States and Boumediene v Bush. The applicants in both cases are claiming that the US Constitution applies to them even though they are non-citizens detained in an area that is, strictly speaking, outside of the territory of the United States.

The action is a result of s. 7 of the Military Commissions Act 2006 which strips federal courts of their statutory right to hear habeas corpus applications from Guantanamo Bay detainees. ‘Jurisdiction stripping’ statutes of this kind are quite common and allowable in United States law (see, for example, Janet Alexander’s excellent piece in the Stanford Journal of Civil Rights and Civil Liberties here), but do not on their own disturb the Constitutional protection for habeas corpus found in Article I(9)(2) of the Constitution (known as the ‘Suspension Clause’). By virtue of this provision Congress may only suspend the writ of habeas corpus in times of invasion or emergency where such suspension is required. It is now well established that express words of suspension ought to be used in order for an act of Congress to suspend the writ and those express words are not present in s. 7. Thus the major question for the Court to decide appears to be whether the Constitutional protection of the writ applies to aliens held outside the state.

The case is potentially the sternest challenge that the US Supreme Court has faced in the ‘War on Terrorism’ and the academic focus is mainly on (a) whether they will find that the constitution does apply [which seems quite likely]; and (b) on what basis they will reach this decision [will they use domestic legal argumentation only or will the justices have recourse to principles of extra-territoriality developed in international human rights law?].

The excellent SCOTUSblog has provided useful summaries of the issues here and the Supreme Court has pledged to make the audio recording of the case available quickly on Wednesday. Once it’s released, the audio ought to be available here.

UPDATE The MP3 of the oral hearing is now available here.