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Homeland Security

Backgrounder: Judging Guantanamo: The Court, Congress, and the White House

Council on Foreign Relations

Authors: Lionel Beehner
Eben Kaplan, Associate Editor

Updated: December 5, 2007


The status of the suspected terrorists detained by the United States in Guantanamo Bay, Cuba continues to test the balance between the executive, judicial, and legislative branches of the U.S. government. In 2006, the Supreme Court ruled that the Bush administration's decision to try detainees at Guantanamo Bay in military war tribunals is illegal, in large part because they lacked congressional sanction. The decision in Hamdan v. Rumsfeld found military commissions did not comply with U.S. military law, the laws of war, or the Geneva Conventions, which protect the rights of detainees during wartime. The landmark decision marked the second time the country's highest court ruled to check the power of the executive branch in its execution of the war on terror. In 2004's Hamdi v. Rumsfeld (PDF), the Court ruled the White House does not have a "blank check" to indefinitely hold and deny legal access to detainees who are U.S. citizens. The Hamdan decision was projected to have even more far-reaching consequences for the more than 300 detainees at Guantanamo Bay, which has emerged as a lightning rod of criticism for human rights advocates and foreign governments. Congress intervened in late 2006, just before Democrats took over majorities in both chambers, passing a law that endorsed military tribunals, but the tussle over jurisdiction between the executive and judicial branch continued. In 2007, the Supreme Court returned to the issue once more, agreeing to hear arguments in the case of Boumediene v. Bush and Al Odah v. United States, both of which challenges the suspension of habeas corpus—the right to challenge one's detention—and ponder what role, if any, U.S. courts should play in prosecuting the Guantanamo detainees.

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Copyright 2007 by the Council on Foreign Relations. This material is republished on with specific permission from the Reprint and republication queries for this article should be directed to

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