Chapter4 Access to Justice | 75 petition filed by Guantanamo detainees should be reviewed by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court), exclusively in order to examine whether the Combat Status Review Tribunals (CSRTs) were conducted in compliance with procedures established by the Secretary of Defense. Therefore, the DTA deprived federal courts of jurisdiction to consider habeas petitions and “any other action” concerning any aspect of detentions at Guantanamo. Further, after the U.S. Supreme Court decision in Hamdan v. Rumsfeld, which will be addressed below, the U.S. Congress enacted the Military Commissions Act of 2006 (2006 MCA) to authorize the President to convene military commissions and to amend the DTA to further reduce detainees’ access to federal courts, including in cases already pending. 184 161. On June 12, 2008, in the landmark decision in Boumediene v. Bush the U.S. Supreme Court recognized that constitutional rights could extend to non-citizens abroad. The Court ruled in this regard that Guantanamo detainees had the right to file habeas corpus petitions before federal courts given that the United States maintains de facto sovereignty over the territory of the U.S. Naval Station at Guantanamo Bay. The Supreme Court concluded that “[w]ithin the Constitution’s separation-of-power structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.” 185 The Court also found that the DTA review of the CSRT findings failed to provide an adequate and effective substitute for habeas corpus, and therefore detainees did not need to exhaust the review procedures in the D.C. Circuit Court before proceeding with their habeas actions in the D.C. District Court. This is the first time that the U.S. Supreme Court invalidated a statute because it violated the Suspension Clause, 186 foreclosing the type of explicit congressional repeal that followed the Court’s previous decisions in Rasul v. Bush and Hamdan v. Rumsfeld. 187 162. Although Boumediene was a landmark decision, it left important questions unresolved. It did not “address the content of the law that governs petitioners’ detention,” 188 declining to decide the scope of the executive’s authority to detain individuals under the AUMF. It also left various substantive and procedural questions bearing on the legality of the detention of individuals at Guantanamo for the district courts to resolve on the merits, such as evidentiary and access-tocounsel issues. 184 185 186 187 188 Congressional Research Service, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, February 3, 2010, Summary. Available at: http://fas.org/sgp/crs/natsec/RL33180.pdf Boumediene v. Bush, 553 U.S. 723 (2008) at 69. U.S. Constitution, Article I, Section 9, Clause 2: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” See in this regard, Hafetz, Jonathan, Calling the Government to Account: Habeas Corpus after Boumediene (December 14, 2011). Available at SSRN: http://ssrn.com/abstract=1972542 or http://dx.doi.org/10.2139/ssrn.1972542 Boumediene v. Bush, 553 U.S. 723 (2008) at 69-70. Inter-American Commission on Human Rights | IACHR