The prisoners whose
names have gone forward in these test cases are Lakhdar
Boumediene and Fawzi al-Odah.
The first is an Algerian turned Bosnian who went to Bosnia
during the civil war and stayed on. He was arrested on suspicion
of planning an attack on the US embassy there but was released
and then, according to his lawyers, grabbed by US agents and
secretly flown to Guantanamo Bay.
The second is a teacher from Kuwait who was picked up in
A 17th Century example
Clarendon sent prisoners out of England and held them
However another, more ghostly, figure will also feature in
Clarendon sent prisoners out of England and held
them without trial
This is Edward Hyde, Earl of Clarendon, who was one of
Charles II's henchmen after the restoration of the monarchy in
England in the 17th Century. Briefs for both sides in the
Supreme Court hearing mention his activities.
Clarendon set up his own Guantanamo Bay, believed to have
been in Jersey, in the hope that his prisoners could be kept
away from the courts and in particular from the right of habeas
This is an ancient procedure in which a court can order
someone holding a prisoner to bring him or her to court to
justify the detention.
In the end, he failed and was himself impeached before
The administration had hoped, too, that, by choosing a remote
location in Cuba, it would avoid the scrutiny of American
However, in an important case called Rasul v Bush in 2004,
the Supreme Court held that prisoners, even though foreign and
even though in a far away place, could petition US courts under
So to try to get around this, in 2006 the administration
proposed, and Congress passed, the Military Commissions Act
This removed the habeas corpus right. And it is this Act
which is being challenged in the Supreme Court.
Arguments for the prisoners
Lawyers for the petitioners (that is the prisoners) argue in
their brief: "The Founders of our nation created a Constitution
dedicated to the protection of liberty, not one that turns a
blind eye to indefinite detention without a meaningful
opportunity to be heard."
They say that habeas corpus does extend to Guantanamo Bay
because, even though the territory is not under formal US
sovereignty, it is under US control.
"The MCA's purported repeal of habeas is unconstitutional,"
Arguments for the government
US government lawyers under the solicitor general, who argues
government cases in the court, have responded by saying in their
brief that the US does not own Guantanamo Bay and therefore the
writ of habeas corpus does not run there.
"As aliens held outside the sovereign territory
of the United States, petitioners do not enjoy any rights [under
the habeas corpus clause of the US constitution]," they state.
There could be fireworks at the hearing
The government further argues: "The Military Commissions Act
of 2006 validly divested the District Court of jurisdiction over
petitioners' habeas corpus petitions."
The arguments will be heard in a one-hour session during
which the justices of the Supreme Court pepper and interrupt the
lawyers with questions designed to test them and trip them up.
It is often a dazzlingly learned hearing and the lawyers for
both sides have to be wary of making mistakes and of being found
ignorant and wanting.
The court then issues its ruling some months later.
In this case, the stakes are higher than usual - the future
of Guantanamo Bay.
The Earl of Clarendon would be fascinated.