[Antiracism] GUANTÁNAMO SUPREME COURT BRIEF FILED TODAY

[Marty Nathan]

thanks to carolyn tkach:

 
            GUANTÁNAMO SUPREME COURT BRIEF FILED TODAY ARGUES THAT EXECUTIVE BRANCH IS NOT ABOVE THE RULE OF LAW 
            Brief Argues Detainees in U.S. Custody Possess Fundamental Constitutional Rights

                   
                  Opinions and Documents  
                   Merits Brief 
                 
                 

            Synopsis

            On August 24, 2007, Center for Constitutional Rights (CCR) attorneys and co-counsel submitted a ground-breaking brief to the Supreme Court in the case that will determine whether detainees at Guantánamo possess the fundamental constitutional rights to due process and habeas corpus. 

            The brief was filed on behalf of men from the first habeas corpus petitions submitted immediately after the landmark 2004 Supreme Court decision in CCR's case Rasul v. Bush. Al Odah v. United States, as the case is now called, has been consolidated with a related case, Boumediene v. Bush; both challenge the Military Commissions Act (MCA), which attempted to strip away the statutory right to habeas corpus the Supreme Court recognized in 2004 and replace it with a far more limited review process set up by the Detainee Treatment Act (DTA). 

            "These men have been held unlawfully in abusive conditions while the courts and Congress debate whether they should have any rights," said CCR President Michael Ratner. "We have been back and forth in the courts as the government has tried one maneuver after another to avoid the Supreme Court's 2004 ruling that the detainees are entitled to challenge their detention in U.S. courts. We hope the Supreme Court will end this travesty once and for all, and provide full, fair and prompt hearings, which are the very foundation of a free society." 

            The Court ruled in Rasul that the Guantánamo detainees' right to habeas corpus was consistent with the common law. Given that the U.S. Constitution protects the common law writ of habeas, the brief filed today argues that the government is attempting to stand above the law and the Constitution of the United States when it imprisons people and denies them the right to have courts review the legality of their detention. Because there is no invasion or rebellion within our borders, under the Constitution Congress cannot suspend habeas corpus. 

            The brief goes on to argue that the detainees must have the fundamental minimum constitutional rights of due process and habeas corpus for two additional reasons. First, Guantanamo is part of the territorial jurisdiction of the United States - "in every practical respect a United States territory," as Justice Kennedy wrote in his concurring opinion in Rasul in 2004. Second, any prisoner whom the United States holds in prolonged detention in a place where the United States has both exclusive control and exclusive jurisdiction over them deserves the right of access to the courts. The remainder of the brief outlines all the ways in which the process available under the Detainee Treatment Act (allowing for very limited court review of decisions of the Combatant Status Review Tribunals set up by the military) is not and can never be an adequate substitute for habeas corpus. 

            "At the heart of this case is the government's attempt to stand above the law," said Judge John J. Gibbons, who argued Rasul v. Bush before the Supreme Court in 2004. "The U.S. government has forcibly seized and jailed these men, and held them under its exclusive control for nearly six years without charges. It is precisely such abuse of government authority and disregard for the law that the Constitution, habeas corpus, and the courts are designed to restrain." 

            Nearly 20 amicus briefs were also filed in support of the cases, from a broad range of sources that include former federal judges, former JAG officers, legal historians, the bi-partisan Constitution Project, and 383 UK and European parliamentarians. 

            Last April, the Supreme Court initially declined to hear the cases, but, for the first time in 60 years, reversed itself and announced on June 29, its final day in session, that it would hear Al Odah/Boumediene during the Court's 2007-2008 Term. Arguments are tentatively scheduled for December 5, 2007. 

            Background 

            Al Odah consists of the first 11 habeas corpus petitions filed after the landmark Supreme Court decision in Rasul v. Bush; Boumediene is on behalf of six humanitarian workers seized by the U.S. military in Bosnia after the Bosnian courts ordered local authorities to release them. In Al Odah, D.C. District Court Judge Joyce Hens Green stated that detainees possess "the fundamental right to due process of law under the Fifth Amendment." Reaching an entirely different conclusion, Judge Richard Leon dismissed the Boumediene appeals, ruling that the detainees possess no constitutional rights - making the right of access to the courts recognized in Rasul an empty shell. Both cases were appealed, and the two cases were consolidated for oral arguments before the D.C. Circuit Court of Appeals. 

            While the cases were pending, Congress passed the DTA in 2005 and the Military Commissions Act in 2006. The MCA attempts to strip detainees of their statutory right to challenge their detention in the courts. 

            In April 2007, when the Supreme Court initially refused to hear Al Odah/Boumediene, three justices had dissented and two, Justices Stevens and Kennedy, issued a statement suggesting that the detainees should exhaust the process set up by the DTA before they would consider ruling on constitutional questions. However, the two Justices made a point of noting that the Court could revisit the case if it turned out that the DTA process provided an "inadequate remed[y]," if the "Government unreasonably delayed proceedings" under the DTA, or if the "government were to take additional steps to prejudice the position of detainees in seeking review in this Court." 

            Attorneys subsequently filed rehearing petitions outlining the ways in which the DTA and CSRT processes were not working and asking the court to reconsider review. According to CCR attorneys, the CSRT's are a sham process. The government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process. Some detainees were sent through the CSRT process as many as three times until they were found guilty - the process is designed, say attorneys, to get the government the results it wants. 

            Under the DTA, the Court of Appeals is only allowed to determine whether the military adhered to its own rules in the CSRT process. The government claims that the DTA does not allow any new evidence or additional facts to be presented to the court by the detainee. 

            "Abuses of executive power like Guantánamo, black sites, rendition and torture can only exist when the courts stand aside and let them happen," said CCR Executive Director Vincent Warren. "These abuses damage America's standing in the world and they do nothing to make us safer. The Court should begin to undo the damage to the rule of law wrought by this administration and allow us to rebuild our nation's reputation and our commitment to justice." 

            For more information on Al Odah v. United States, visit www.ccr-ny.org/SupremeCourt. For background on the original case, Rasul v. Bush, visit www.ccr-ny.org/RasulvBush. 

            The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of more than 500 pro bono attorneys working on the detainee cases. 

            Co-counsel in this case include: John J. Gibbons and Lawrence S. Lustberg of Gibbons P.C.; Thomas B. Wilner, Neil H. Koslowe, and Amanda E. Shafer of Shearman & Sterling LLP; George Brent Mickum IV of Spriggs & Hollingsworth; Mark S. Sullivan, Christopher G. Karagheuzoff, and Joshua Colangelo-Bryan of Dorsey & Whitney LLP; Baher Azmy of the Seton Hall Law School Center for Social Justice; Pamela Rogers Chepiga, Karen Lee, Douglas Cox, Sarah Havens, Julie Withers, and Chintan Panchal of Allen & Overy LLP; Scott Sullivan, Derek Jinks, and Kristine Huskey of the University of Texas School of Law National Security and Human Rights Program and Clinic; Joseph Margulies at the Macarthur Justice Center at Northwestern University Law School; Douglas J. Behr at Keller And Heckman LLP; Erwin Chemerinsky of Duke Law School; and Clive Stafford Smith and Zachary Katznelson from the UK-based human rights organization Reprieve. 


           
     
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