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

Council on Foreign Relations

Updated: January 24, 2008

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 late 2007 the Supreme Court heard oral arguments in the cases of Boumediene v. Bush and Al Odah v. United States, both of which challenged the suspension of habeas corpus—the right to challenge one's detention—and pondered what role, if any, U.S. courts should play in prosecuting the Guantanamo detainees. But it was not the first time the Supreme Court considered the legality of the Bush administration’s detention of so-called enemy combatants. 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 Supreme Court ruled against the Bush administration again in 2006, when it determined the White House’s decision to try detainees at Guantanamo Bay in military tribunals is illegal, in large part because they lacked congressional sanction. The decision in that case, 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 opinion was projected to have far-reaching consequences for the 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 by passing a law that endorsed military tribunals. But the tussle over jurisdiction between the three branches of government continues.

Read the rest of this article on the cfr.org website.

Copyright 2008 by the Council on Foreign Relations. This material is republished on GlobalSecurity.org with specific permission from the cfr.org. Reprint and republication queries for this article should be directed to cfr.org.