On September 8, 2005, cooperating counsel with the Center for Constitutional Rights (CCR) argued before the United States Court of Appeals for the District of Columbia on behalf of the men currently held at Guantánamo Bay. At issue is whether prisoners detained in Guantánamo are entitled to due process. The case was heard before a three-judge panel that included Judges Sentelle, Randolph, and Rogers.

During the argument, lawyers for the detainees raised their clients' claims that they are “wholly innocent of any wrongdoing” and have not been afforded any opportunity to challenge the government's basis, if any, for their detention. They also argued that the government has used different and ever-expanding definitions of “enemy combatant” status to justify the arbitrary detentions in Guantánamo. Fundamentally, the detainees' lawyers argued, the habeas statute, which was enacted prior to the Fifth Amendment in the Bill of Rights, allows the detainees to challenge the lawfulness of their arbitrary detention under the common law regardless of whether they hold any Fifth Amendment Due Process rights.

In response, the government asserted the power under the Authorization for the Use of Military Force to seize an individual in Afghanistan and send him to Guantánamo for un-reviewable detention. The government claimed that it could do so without giving the detainees any hearing or process at all, even going so far as to claim that the current Combatant Status Review Tribunal (CSRT) hearings are unnecessary to sustain the detentions.

The Court of Appeals panel was very concerned about the government's argument that it has un-reviewable power to seize and detain people it declares “enemy combatants.” The court also strongly questioned the government about its position that the detainees are not entitled to challenge the legality of their Executive detention under the common law.

“The court correctly noted that the habeas statute provides individuals with the common law right to challenge the lawfulness of their detention – a right that has existed in law since the Magna Carta and was codified by the United States Congress in 1789,” said CCR Deputy Legal Director Barbara Olshansky immediately following the arguments.