The following opinions were released by the U.S. Supreme Court on June 12, 2008:

• Boumediene v. Bush, Odah v. U.S.. Opinion of the Court by Kennedy, J., joined by Steven, Souter, Ginsburg, Breyer, JJ.; concurring opinion by Souter, J., joined by Ginsburg, Breyer, JJ.; dissenting opinion by Roberts, C.J., joined by Scalia, Thomas, Alito, JJ.; dissenting opinion by Scalia, J., joined by Roberts, C.J., and Thomas, Alito, JJ.. Before the Court was the question of whether aliens detained at the U.S. Military installation at Guantanamo Bay, Cuba, have the constitutional privilege of habeas corpus. The Court held that the Detainee Treatment Act (”DTA”) was not an adequate substitute for habeas corpus, and that § 7 of the Military Commissions Act of 2006 (”MCA”) is an unconstitutional suspension of habeas corpus. The Court first held that the MCA does strip federal courts of jurisdiction to entertain habeas petitions pending at the time of its enactment from those deemed “enemy combatants” and detained outside the territorial United States. The Court found that the Framers deemed the writ [of habeas corpus] to be an essential mechanism in the separation-of-powers scheme.” Slip op. at 13. The Court then held, “The [Suspension] Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. . . . The separation-of- powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.” Slip op. at 15. The Court then found that it was unable to find an answer to the issue in historical practice vis a vis the application of the habeas writ to foreign nationals detained outside the sovereign territory of England at and prior to the adoption of the Suspension Clause in 1789, because the historical record is incomplete, and no truly analogous scenario resides in that incomplete historical record. The Court then found that, while Cuba exercises technical sovereignty over Guantanamo Bay, it still must look to the actual degree of control exercised over the territory, distinguishing de jure sovereignty from the de facto sovereignty exercised over Guantanamo by the United States. After reviewing its precedents regarding the application of constitutional guarantees in extra-territorial circumstances, the Court held that the uniting theme was “the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Slip op. at 34. The Court then rejected the government’s suggestion that formal sovereignty is the end of the analysis, in light of the specific history of Guantanamo, because that would allow the government to cede sovereignty over a non-territorial area to a third party, then receive full plenary control back through lease or contract (as it had with Guantanamo Bay) and gain the power to govern without any constitutional limitation: “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” Slip op. at 36. The Court held that there were three factors “relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Slip Op. at 36-37. The Court noted that, on the first factor, the status of many of the Guantanamo detainees as enemy combatants is itself in dispute; that, on the second factor, while the petitioners are imprisoned outside the United States, the level of control exercised by the U.S. over Guantanamo makes the prison there “in every practical sense . . . not abroad,” slip op. at 39; and that, on the third factor, the military mission at Guantanamo would not be compromised by holding the Suspension Clause (and, therefore, the habeas writ) applicable at the installation. The Court, accordingly, held the Suspension Clause to be applicable. The Court then found that the DTA did not afford necessary protections to substitute for the constitutionally sufficient collateral review available by habeas corpus; and that § 7 of the MCA was an unconstitutional suspension of the writ. The Court then emphasized that its decision in no way ruled on the legality of the petitioners’ detention, but only that they had the right to bring habeas actions in U.S. district courts to challenge the legality of their detention. In his concurrence, Justice Souter wrote separately to take issue with the dissent on a couple of fronts, but primarily to observe that, “[a]fter six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory [over the executive], but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.” Concurring slip op., at 3. In the Chief Justice’s dissenting opinion, he observed that the Court’s analysis should not have focused on the substantive constitutional issue of the suspension of the habeas writ, but on the procedural question of whether whatever rights were retained by the detainees were protected adequately under the challenged statutory system. The Chief Justice expressed the belief that the majority’s opinion will result in little practical difference between the DTA and the resulting review system, other than to put in the judiciary’s hands the crafting of detainee review policy instead of in the political branch’s hands. Justice Scalia’s dissent, while in agreement with the statutory analysis of the Chief Justice, went further, to disagree with the entitlement of aliens abroad to the protection of the Suspension Clause.
• Munaf v. Geren. Opinion for the unanimous Court by Roberts, C.J.; concurring opinion by Souter, J., joined by Ginsburg, Breyer, JJ.. This case arises from the detention of American citizens who were voluntarily in Iraq, accused of committing crimes while in Iraq and detained by American forces operating under the aegis of the Multinational Force in Iraq (”MNF-I”). The Court held that, under the government’s concession that American forces in the MNF-I operate at the direction of the American military and executive, the habeas remedy is applicable to American citizens held in their custody, declining to “extend [its] holding in Hirota to preclude American citizens held overseas by American soldiers subject to a United States chain of command from filing habeas petitions.” Slip op. at 11. The Court then examined whether U.S. district courts may exercise their habeas jurisdiction to enjoin the U.S. military from transferring U.S. citizens detained in foreign territory to the sovereign government of that territory for crimes committed in that territory. The Court held that Iraq has a sovereign right to prosecute the alleged crimes, and that the habeas writ may not be used to found an injunction against transfer to the Iraqi authorities: “[H]abeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them.” Slip op. at 19. The Court then found that the petitioners’ arguments that their transfer to Iraqi authorities here could possibly result in torture, while a serious concern, is one best addressed to the political branches and not to the judiciary. Concurring, Justice Souter wrote to caution that the Court’s holding would not necessarily extend to a case where the petitioner sought to enjoin transfer to a sovereign that was likely (as opposed to where it was merely a possibility) to exercise torture on the petitioner, even if in such a case the likelihood was well-documented but the Executive Branch refused to acknowledge it.
• Republic of Philippines v. Pimentel. Opinion of the Court by Kennedy, J., joined by Roberts, C.J., Scalia, Thomas, Ginsburg, Breyer, Alito, JJ.; opinion concurring in part and dissenting in part by Stevens, J.; opinion concurring in part and dissenting in part by Souter, J.. In this interpleader action involving claims for property stolen during the regime of former Philippine president Ferdinand Marcos, the Republic of Philippines and the Philippine Presidential Commission on Good Governance were dismissed on the basis of their sovereign immunity under FISA; the suit went forward without the Republic and the Commission, over their objection, and the Republic and Commission subsequently challenged the legality of allowing the interpleader suit to proceed under Federal Rule of Civil Procedure 19, as they contended they were necessary parties. The Ninth Circuit held that the action could proceed in the absence of the Republic and the Commission on the basis that they would not be able to prevail on their claims if in the suit. The Supreme Court reversed, holding that the Ninth Circuit gave insufficient weight to the Republic’s and Commission’s status as foreign sovereigns. The Court held that the principles of comity and national dignity dictate that the suit here not go forward under FRCP 19, as the assets at issue in the interpleader “arise from events of historical and political significance for the Republic and its people. The Republic and the Commission have a unique interest in resolving the ownership of or claims to the Arelma assets and in determining if, and how, the assets should be used to compensate those persons who suffered grievous injury under Marcos.” Slip op. at 13. The Court then held, “[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign.” Slip op. at 14. Dissenting in part and concurring in part, Justice Stevens observed that he would agree with reversal of the Ninth Circuit on the grounds that the Republic and Commission would not prevail on their claims, but would not find the parties’ status as foreign sovereigns to be dispositive and would therefore remand to the district court for further proceedings. Also dissenting in part and concurring in part, Justice Souter would vacate the Ninth Circuit and remand with instructions to stay the proceedings pending a ruling by the Philippine court.
• Irizarry v. U.S.. Opinion of the Court by Stevens, J., joined by Roberts, C.J., Scalia, Thomas, Alito, JJ.; concurring opinion by Thomas, J.; dissenting opinion by Breyer, J., joined by Kennedy, Souter, Ginsburg, JJ.. Under the previous sentencing regime, where the Sentencing Guidelines were mandatory, the Court’s precedent had required prior notice to be given if the court intended to impose a sentence that departed from the Sentencing Guidelines. In this matter, the Court imposed a sentence nine months greater than the range provided for in the Sentencing Guidelines, but because the Guidelines only provide for non-mandatory guidelines for sentencing, the Court termed this a variance, and held that its prior notice requirement was inapplicable. To avoid abuse of defendants’ due process rights, the Court observed that judges should exercise sound discretion: “Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.” Slip op. at 7. Concurring, Justice Thomas observed that he still operated under the belief that the Guidelines should still be treated as mandatory, but that he was concurring under the current precedent since that question was not before the Court. Dissenting, Justice Breyer found that the distinction between “variance” and “departure” was without a difference, such that Rule 32(h)’s requirement should be applicable to both.
• Taylor v. Sturgell. Opinion for a unanimous Court by Ginsburg, J.. The plaintiff, Taylor, had brought a Freedom of Information Act (”FOIA”) claim against the FAA, seeking certain information. Previously, a friend of Taylor’s, Herrick, had brought a FOIA suit against the FAA seeking essentially the same information. The district court, affirmed by the D.C. Circuit, held that Taylor’s suit was precluded by the determination in the Herrick suit, as Herrick was Taylor’s “virtual representative,” thereby bypassing the general rule that a non-party will not be precluded by the disposition of a lawsuit. The Court observed that the doctrines of claim preclusion and issue preclusion may not be use to preclude claims of non-parties, subject to limited exceptions. In support of its holding that “virtual representation” was not an exception to the bar of preclusion against non-parties, the Court held that the “virtual representation” cases did not fit within the categorical exception for situations where the non-party’s interests were adequately represented by a party to an earlier suit.