This was a consolidated case with Al Odah v. United States as both involved writs of habeas corpus on behalf of foreign nationals held in military detention at Guantanamo Bay. The Supreme Court decided that detainees have a right to the habeas corpus under the United States Constitution, and the Military Commissions Act (MCA) of 2006 was an unconstitutional suspension of that right. Thus, military detainees have the right to challenge their detention within the federal court system.

In Jose Padilla v. Donald Rumsfeld, the Court of Appeal for the Second Circuit decided that the President lacked inherent constitutional power to detain, as an enemy combatant, an American citizen seized within the country and Congress had not authorised such detentions.

In Rasul v. Bush, the Supreme Court held that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

In this case, Yaser Esam Hamdi, an American citizen, captured in Afghanistan was designated by the administration as an "enemy combatant" and detained at an American naval base in South Carolina. He filed a habeas corpus petition alleging that the government was holding him in violation of the Constitution. The Court concluded that "while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator." (p. 28 of the Judgment)

^{Source: ICRC National implementation database}

On 22 January 2004, the Center for Constitutional Rights filed a constitutional and human rights case in the US District Court for the Eastern District of New York challenging the decision by federal officials to send Maher Arar, a Canadian citizen, to Syria for torture and interrogation. The claims in the lawsuit include violations of Mr. Arar's right to due process under the US Constitution, his right to choose a country of removal other than one in which he would be tortured as guaranteed under the Torture Victims Protection Act, and his rights under international law. On 16 February 2006, Judge David Trager dismissed Mr. Arar's claims against US government officials for "rendering" him to Syria to be tortured and arbitrarily detained. Judge Trager found that national security and foreign policy considerations prevented him from holding the officials liable for carrying out an extraordinary rendition even if such conduct violates treaty obligations or customary international law. M. Arar filed an appeal in the second circuit.

^{Source: Center for Constitutional Rights}

In the landmark Hamdan case, the Supreme Court decided that the structure and procedures of the military commissions established by the administration for trying Guantanamo detainees violated both the Uniform Code of Military Justice and common Article 3 to the 1949 Geneva Conventions. More particularly, the Court found that Hamdan had to be tried by a court affording all "the judicial guarantees" recognised in common Article 3.

Following that decision, the Secretary of Defense issued a memo on 7 July 2006 on the "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense" which was followed in September by a DoD Directive on the DoD Detainee Program. In July 2007, the Bush administration issued an executive order on the applicablity of common Article 3 to CIA detainees. Hence, through those legal provisions, both DoD and CIA detainees are covered by common Article 3.

^{Useful websites}

^{Access to Military Commission case law}

^{(See also the Commentary by Prof. Audrey Macklin on the Omar Khadr case, "The Omar Khadr Case: Redefining War Crimes" - Jurist News, 31 Octobre 2008)}

^{National Institute of Military Justice: Military Commission Reporter Vol. I (17 October 2006-1 June 2009), 2009}

^{Combatant Status Review Tribunals}

^{Center for Constitutional Rights}

^{FindLaw Cases and Codes}

^{Human Rights First, In Pursuit of Justice Prosecuting Terrorism Cases in the Federal Courts: Update and Recent Developments, July 2009}

^{American Bar Association Standing Committee on Law and National Security, Trying Terrorist in Article III Courts: Challenges and Lessons Learnt, 24 July 2009}