Dissenting, Judge Judith W. Rogers reminded the majority that the United States Supreme Court has already stated that “[a]pplication of the habeas statute to persons detained at the [Guantanamo] base is consistent with the historical reach of the writ of habeas corpus." She further wrote that the D.C. court "offers no compelling analysis to compel the contrary conclusion.” The Constitution’s Suspension Clause, she said, acts as a limitation on the powers of Congress.

"The United States Supreme Court has twice ruled that the writ of habeas corpus extends to the prisoners at Guantanamo Navy Base, yet the lower courts and the Congress refuse to get this message,” said NACDL President Martin S. Pinales. “We hope the case proceeds quickly to the Supreme Court and that the court again will vindicate the
historic and fundamental right to habeas corpus and uphold the right of the imprisoned to seek redress in court. Anything less is unthinkable in a democratic society that prides itself on upholding the rule of law and fidelity to the traditional values on which its legal system is based.”

NACDL also urges Congress quickly to rectify the problem it created last year in the Military Commission Act, which, by denying the Guantanamo detainees and others access to the courts, has regrettably returned us to the dark era predating not only the Geneva Conventions,but the Magna Carta.