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<DIV><FONT face=Arial size=2>thanks to carolyn tkach:</FONT></DIV>
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<TD vAlign=top><SPAN class=boldheadline>GUANTÁNAMO SUPREME COURT
BRIEF FILED TODAY ARGUES THAT EXECUTIVE BRANCH IS NOT ABOVE THE RULE
OF LAW</SPAN> <BR>Brief Argues Detainees in U.S. Custody Possess
Fundamental Constitutional Rights<BR><BR clear=all>
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<DIV class=opinionsHeader><IMG height=7 alt="" hspace=5
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width=8 border=0><SPAN class=whitetext>Opinions and
Documents</SPAN> </DIV></TD></TR>
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<DIV class=opinionsLinks><SPAN class=text><IMG height=7
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src="http://www.ccr-ny.org/v2/images/bullet_orange.gif"
width=7 border=0> <A class=text
href="http://ccr-ny.org/v2/reports/docs/AlOdahMeritsBrief.pdf">Merits
Brief</A> <SPAN class=smalltext></SPAN><BR></SPAN></DIV></TD></TR>
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class=boldtext>Synopsis</SPAN><BR>
<P>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. </P>
<P>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 <I>Rasul v. Bush</I>. <I>Al Odah v.
United States</I>, as the case is now called, has been consolidated
with a related case, <I>Boumediene v. Bush</I>; 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). </P>
<P><I>"These men have been held unlawfully in abusive conditions
while the courts and Congress debate whether they should have any
rights,"</I> said <B>CCR President Michael Ratner</B>. <I>"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."</I> </P>
<P>The Court ruled in <I>Rasul</I> 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. </P>
<P>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 <I>Rasul</I> 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. </P>
<P><I>"At the heart of this case is the government's attempt to
stand above the law,"</I> said <B>Judge John J. Gibbons</B>, who
argued <I>Rasul v. Bush</I> before the Supreme Court in 2004.
<I>"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."</I> </P>
<P>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. </P>
<P>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
<I>Al Odah/Boumediene</I> during the Court's 2007-2008 Term.
Arguments are tentatively scheduled for December 5, 2007. </P>
<P><B>Background</B> </P>
<P><I>Al Odah</I> consists of the first 11 habeas corpus petitions
filed after the landmark Supreme Court decision in <I>Rasul v.
Bush</I>; <I>Boumediene</I> 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 <I>Al Odah</I>, 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 <I>Boumediene</I> appeals, ruling that the
detainees possess no constitutional rights - making the right of
access to the courts recognized in <I>Rasul</I> an empty shell. Both
cases were appealed, and the two cases were consolidated for oral
arguments before the D.C. Circuit Court of Appeals. </P>
<P>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. </P>
<P>In April 2007, when the Supreme Court initially refused to hear
<I>Al Odah/Boumediene</I>, 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." </P>
<P>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. </P>
<P>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.
</P>
<P><I>"Abuses of executive power like Guantánamo, black sites,
rendition and torture can only exist when the courts stand aside and
let them happen,"</I> said <B>CCR Executive Director Vincent
Warren</B>. <I>"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."</I> </P>
<P>For more information on <I>Al Odah v. United States</I>, visit <A
href="http://www.ccr-ny.org/SupremeCourt">www.ccr-ny.org/SupremeCourt</A>.
For background on the original case, <I>Rasul v. Bush</I>, visit <A
href="http://www.ccr-ny.org/RasulvBush">www.ccr-ny.org/RasulvBush</A>.
</P>
<P>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. </P>
<P>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. <BR></P>
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