[3] However, Assistant Attorney General for the Office of Legal Counsel Jay Bybee, relying on the unitary executive theory developed by Deputy Assistant Attorney General John Yoo, advised the President in a series of memos that he could hold enemy combatants abroad, indefinitely, without Congressional oversight, and free from judicial review.

[3] The various plaintiffs were taken to Guantanamo Bay for different reasons, but were generally captured or arrested during the United States invasion of Afghanistan.

The twelve Kuwaitis, combined in Al Odah v. United States, claimed that they were in Pakistan and Afghanistan giving humanitarian aid.

The government had designated the detainees as enemy combatants and did not allow them access to counsel, the right to a trial, or knowledge of the charges against them.

On February 19, 2002, Guantanamo detainee Shafiq Rasul, a British citizen, petitioned in federal court for a writ of habeas corpus to review the legality of his detention.

Each of the filings alleged that the government had not allowed the detainee to speak at all to friends, family or lawyers, and had not given him any hearing whatsoever on the question of whether he was an enemy combatant in the war.

U.S. District Judge Colleen Kollar-Kotelly denied the detainees' petitions on July 30, 2002, finding that aliens in Cuba had no access to U.S.

On March 9, 2004, two years after they were first detained, the U.S. released Rasul and Iqbal to the United Kingdom with no charges filed, along with three other British citizen detainees.

...If it wanted to change the habeas statute, it could make all sorts of refined modifications about issues that we know nothing whatever about because we have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff.

And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts.On June 28, 2004, the Supreme Court of the United States decided against the Government.

[11] Quoting Lord Mansfield and William Blackstone, Justice Stevens reasoned that common law courts exercise habeas jurisdiction over all dominions under the sovereign's control.

While refusing to join the majority's opinion's view of "automatic statutory authority", Justice Kennedy felt federal-court jurisdiction is permitted, "in light of the status of Guantanamo Bay and the indefinite pretrial detention of detainees".

Attacking the majority's statutory interpretation Justice Scalia wrote, "for this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort.

[16] He was held and tortured in Egypt for five months before being returned to Pakistan, and then transferred to military custody and Guantanamo Bay.

[18] In 1956, Stevens wrote a book chapter where he quoted Justice Rutledge's dissent from In re Tomoyuki Yamashita (1946): "It is not too early, it is never too early, for the nation to steadfastly follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, this is, of all men, whether citizens, aliens, alien enemies or enemy belligerents.

"[3] Justice Stevens quoted the Ahrens dissent approvingly in Rasul, fifty-six years after he had drafted it as a clerk.

[25] Congress responded by passing the Military Commissions Act of 2006, which gave statutory authorization to the CSRTs and was explicit in retroactively stripping detainees of any right to petition courts for habeas review.