The Supreme Court denied certiorari in the Guantanamo detainee cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. Rumsfeld, No. 06-1196. Justices Stevens and Kennedy were evidently the swing votes, and they issued a joint opinion "respecting" (i.e., concurring in) the denial of certiorari.
The first reason they cite is the "traditional rules governing our decision of constitutional questions," meaning don't decide them unless and until it is truly necessary, citing Justice Brandeis's concurrence in Ashwander v. TVA, 297 U.S. 288, 341 (1936). Justice Breyer's dissent from denial of certiorari, joined by Justices Souter and Ginsburg, says the constitutional issues are ready for decision, as the D.C. Circuit has already decided that the Gitmo detainees have no constitutional rights, so there is nothing further to decide. In addition, the Suspension Clause right they claim is for the common law's speedy remedy for relief from unlawful detention.
The second reason given by the Stevens & Kennedy opinion is "our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus, cf. Ex parte Hawk, 321 U.S. 114 (1944)...." However, that rule was developed for the relatively modern innovation, unknown at common law, of using the writ to collaterally attack a judgment of a court of general jurisdiction. See, e.g., Ex parte Watkins, 28 U.S. 193, 209 (1830). It has no application to a petitioner using the writ for its original purpose: to challenge executive detention without judicial authorization or detention for trial before a court without jurisdiction. (The statutory exhaustion rule, 28 U.S.C. § 2254(b), applies only to state prisoners, not federal.)
The reasons given for deferring decision are unconvincing. Perhaps Justice Stevens does not want to revisit his analysis of the historical habeas cases in Rasul v. Bush, 542 U.S. 466 (2004). Justice Breyer today relies on that analysis for the proposition that at common law, persons in petitioners' situation would have been entitled to habeas review. But that analysis was historically inaccurate, as Judge Robertson discussed on remand in Hamdan v. Rumsfeld. (Any resemblance between Judge Robertson's opinion and our Hamdan brief is, as they say in the movies, purely coincidental.) The English Reports version of Schiever's Case, 96 Eng. Rep. 1249 (K.B. 1759) states the rule this way:
He is the King’s prisoner of war, and we have nothing to do in that case, nor can we grant an habeas corpus to remove prisoners of war. His being a native of the nation not at war does not alter the case, for by that rule many French prisoners might be set liberty, as they have regiments of many other kingdoms in their service, as Germans, Italians, &c.
But, if the case be as this man represents it, he will be discharged upon application to a Secretary of State.
Modern translation: no habeas for foreigners held prisoner by the military. Take your case to the executive branch.
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