by Augustine Bauer

Created on: August 18, 2009   Last Updated: January 15, 2010

In the 2008 Supreme Court case, Boumedienne v. Bush, the Court faced questions about the constitutionality of the use of military tribunals to review the cases of Guantanamo Bay detainees. The question of detainees' claim to habeas corpus was also raised.

These tribunals, legalized by the Detainee Treatment Act of 2005 (DTA), have faced considerable opposition. Many argue that these Combat Status Review Tribunals (CSRTs) do not adequately provide for the detainees' rights under the United States' Constitution. It is known that detainees are not informed of the charges against them, are not provided with adequate legal representation, and are subject to spending years in confinement before their case is brought before a tribunal. It has also been claimed that detainees are prevented from calling witnesses to their defense based on the excuses of a biased court.[1]

Others, however, have argued that, as non-citizens, detainees are not guaranteed habeas corpus under the United States' Constitution, that the military tribunals satisfactorily provide for those rights detainees do hold, and that Guantanamo Bay is not under the jurisdiction of United States' Federal Courts.

In Boumedienne v. Bush the Justices had to answer the questions 'Are the military tribunals adequate?'; 'Are Guantnamo Bay detainees entitled to the writ of habeas corpus?'; 'Do federal courts have jurisdiction over these cases?'. The Majority answered 'yes' to the last two questions, effectively banning the use of military tribunals. However, they failed to provide a new plan for efficiently and constitutionally reviewing the detainees' cases. The Supreme Court decision allows detainees to petition their confinement in United States' courts. However, it leaves it up to the district courts to decide on a case-by-case basis the process by which these cases are to be heard, and the constitutionality of holding the detainees at all.

In his dissenting opinion, Chief Justice Roberts wrote,

"How the detainees' claims will be decided now that the DTA is gone is anybody's guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat- precisely the challenge Congress undertook in drafting the DTA. All that today's opinion has done is shift responsibility..."[2]

If Roberts

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