Supreme Court Hears Guantanamo Bay Case

On Friday, the Supreme Court turns its attention to the case of Salim Ahmed Hamdan, charged with being the driver for Osama bin Laden. He denies participating in terrorist attacks but admits to being bin Laden's driver. He has as questioned the legality of his detention and his trial by the first special military tribunal at Guantanamo.

The US District Court ruled on 8 November 2004 that:

[U]nless and until a competent tribunal determines that Hamdan is not entitled to POW status, he may be tried for the offenses with which he is charged only by courtmartial under the Uniform Code of Military Justice.

The ruling was overturned on appeal. After the Supreme Court agreed to hear his case, Congress passed and Bush signed the Detainee Treatment Act on 30 December 2005: it "[strips] the federal courts of jurisdiction to hear pretrial appeals in Guantánamo cases." It was part of the Defense Appropriations bill.

In a closed-door session, the Bush Administration will argue for dismissal of the case. Justice argues that "the Constitution does not guarantee aliens held abroad a right to habeas corpus." In 2004, the Supreme Court rejected the argument that "federal courts have no jurisdiction to hear habeas corpus petitions from persons detained at Guantanamo Bay" in Rasul v Bush.

Findlaw continues: "Moreover, the Court said, even if the habeas statute were to be read to have no extraterritorial application, given the fact of U.S. control, the Guantanamo Bay Naval Base should be deemed, in effect, U.S. territory."

Congress does have the power to suspend habeas corpus during wartime. Can it be suspended retroactively? Can it be suspended when there is no formal declaration of war?

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