Petitioner, v. Respondents. - Center for Justice and Accountability

INTRODUCTIONThis case addresses the lawfulness of the militarycommissions created by the President to try alien detaineesheld at Guantanamo Bay, Cuba. On December 30, 2005, thePresident signed into law the Detainee Treatment Act(DTA), Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2680, 2739(2005), which in certain respects restricts the ability of suchdetainees to seek relief from Article III courts.The section of the DTA relevant here, § 1005(e)(1),“takes effect on the date of the enactment.” § 1005(h)(1). In§ 1005(e)(1), Congress eliminated federal jurisdiction toconsider “an application for a writ of habeas corpus” or “anyother action…relating to any aspect of the detention.” In§§ 1005(e)(2) and (3), Congress conferred limited federalcourt jurisdiction to review “final decisions” of militarycomm-issions and Combatant Status Review Tribunals(CSRTs).With respect to military commissions, those sentencedto a term of imprisonment of ten years or more may appealas a matter of right; those sentenced to shorter terms mayappeal only if the D.C. Circuit exercises its discretion toconsider the case. § 1005(e)(3)(B). No judicial review isavailable under the DTA until the entry of a final decision,which cannot take place until review by a military appealsboard and personal review by the President or Secretary ofDefense. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, § 4(c)(8), 66 Fed. Reg.57833, 57835 (Nov. 13, 2001). If a final decision is notentered, the individual is without any remedy whatsoever.Assuming a final decision is entered, appellate review islimited to (1) whether commission rulings leading to thefinal decision were consistent with the standards andprocedures specified in DOD Order No. 1, 32 C.F.R. § 9(Aug. 31, 2005), or its successors and, to the extentapplicable, (2) whether “the use of such standards andprocedures to reach the final decision is consistent with theConstitution and laws of the United States.” § 1005(e)(3)(D).Thus, for example, if Hamdan were permitted only toproceed in federal court under the procedures specified bythe DTA, no court would have jurisdiction to consider his