The Supreme Court accepted two cases that reached conflicting decisions on the jurisdictional question that the Supreme Court will resolve: whether the right to judicial review of a potentially unlawful detention, secured by the constitutional right to seek habeas corpus, extends to detentions of U.S. citizens who are held overseas by the U.S. military. The question was arguably easier to answer when the Court decided that citizens held at Guantanamo were entitled to a meaningful legal process to challenge their detentions (at least if they appealed before Congress purported to take away that power), because Guantanamo is leased to the U.S. and the detainees there are arguably held on U.S. property. The larger question is more difficult: whether the right to review of an unlawful detention depends on ownership of the soil on which the detainees stand, or on the fact the U.S. government is causing the detention.

The panel in Omar's case followed a more faithful undertanding of the evil habeas corpus is designed to avoid: unlawful and unreviewable deprivations of liberty by the U.S. government.

Noting that Mr. Omar had not been convicted of a crime, Judge David S. Tatel wrote for the appeals court that the district court’s jurisdiction was “abundantly clear” and that “challenging extrajudicial detention is among the most fundamental purposes of habeas.”

The other case involves Mohammad Munaf,

who has been convicted and sentenced to death on kidnapping charges by the Central Criminal Court of Iraq. He is being held by the United States military and has filed a habeas corpus petition challenging the impending transfer that will permit the Iraqis to carry out the sentence.

Munaf's lawyers make a compelling point:

[T]he military should not be permitted to detain an American citizen overseas “or dispatch him to his death at the hands of another sovereign, with no obligation to demonstrate the lawfulness of either his imprisonment or his threatened transfer.”

It would be sad to think that the cherished right to habeas corpus can be evaded by detaining American citizens outside the geographic boundaries of the United States -- particularly when they're detained in a country that the United States invaded and, as a practical matter, occupies militarily. The U.S. government's decisions to deprive its own citizens of freedom should always be reviewable, no matter where the detention occurs.

The Court will hear argument on the two cases in March.