Notwithstanding this Term's dearth of such references, transnational considerations are likely soon to return to the Supreme Court. Today the Court granted petitions for writs of certiorari in 2 Guantánamo detainee cases that it earlier refused to hear. Coupled with the prior grant concerning internal enforcement of the Vienna Convention on Consular Relations in Medellín, this grant portends an OT '07 filled with review of foreign and international law and context.Boumediene
1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
2. Whether 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.
Al Odah
1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?
