Amicus I: Rasul v. Bush Before the D.C. Circuit Court of Appeals
In September 2002, CJA filed an amicus brief with the U.S. Circuit Court of Appeals for the District of Columbia in the consolidated cases of Rasul v. Bush, Habib v. Bush and Al Odah v. United States. These habeas petitions were filed by the families of four U.K. citizens (Rasul), one Australian citizen (Habib) and 14 Kuwaiti citizens (Al Odah) seized by the U.S. military and imprisoned at Guantánamo
Bay. The petitioners claimed that the U.S. government’s decision to detain the prisoners indefinitely without charge and without judicial review was a violation of the 5th Amendment’s Due Process clause. The government contended that the courts had no jurisdiction to hear the habeas claims, since the men were not U.S. citizens and were held outside of sovereign U.S. territory. On July 30, 2002, the D.C. District Court dismissed the cases, adopting the government’s view that habeas rights do not extend to foreign nationals detained outside of U.S. sovereign territory. The petitioners then appealed to the D.C. Circuit Court of Appeals.
In an amicus brief authored by CJA Board member William Aceves, we argued that the United Stated is obligated under international law to protect the human rights of all persons subject to its control, regardless of where they are located. Thus, the obligation to protect human rights extends to the territory of Guantánamo
Bay. Following the principle in U.S. law that the courts should interpret federal statutes in a manner consistent with international law whenever possible, the brief argued that U.S. courts should exercise jurisdiction over the detainees’ habeas claims.
In March 2003, the D.C. Circuit Court of Appeals upheld the dismissal, declaring that “no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. §2241, to the Guantánamo detainees, even if they have not been adjudicated enemies of the United States.”
Amicus Brief II: Rasul v. Bush before the U.S. Supreme Court
In November 2003, the U.S. Supreme Court granted cert in Rasul v. Bush and joined it to a related case involving Guantánamo
detainees: Al- Odah v. United States. The two cases were consolidated under the name Rasul v. Bush. The question put before the Court was whether the degree of control exercised by the United States over the prison at Guantánamo
Bay was sufficient to trigger the extension of constitutional habeas rights to detainees held there.
In an amicus brief authored by CJA Legal Advisory Council member Nicholas van Aelstyn, we argued that the question before the Court spoke to the fundamental separation of powers between the executive branch and the judiciary in the constitutional system of checks and balances. Restraining the power of the executive to deprive an individual of her liberty is fundamental to the protection of human rights, as is the right to due process. U.S. courts traditionally have served as this check on executive power, and we argued that they should continue to do so, by exercising jurisdiction wherever the U.S.government detains individuals. Further, the U.S. judicial system has been a model of a strong and independent judiciary to developing legal systems around the world. To deny U.S. courts the exercise of habeas corpus would hinder the progress made in building the rule of law internationally.
In a landmark ruling, the Supreme Court held that the United States exercised “complete jurisdiction and control” over the base at Guantánamo, rendering moot any question of sovereignty. Citing a line of precedent reaching back to 17th century English jurisprudence, the Court’s 6-3 opinion held that the right to habeas corpus is in force in “all … dominions under the sovereign’s control.” Further, since the extension of habeas rights is linked to the extension of sovereign power, the right to habeas corpus is not dependent on the citizenship of the petitioner. The Court thus gave the green light for the prisoners to challenge the constitutionality of their detention.
Shafiq Rasul, plaintiff in Rasul v. Bush, was released from Guantanamo in March 2004, several months before the Supreme Court handed down its decision.
Shortly after the Court’s ruling, Congress passed the Detainee Treatment Act of 2005 (DTA). The DTA divested the courts of jurisdiction to hear habeas challenges by Guantánamo
detainees. The Military Commissions Act of 2006 (MCA) made the DTA retroactive in order to apply to pending habeas cases.
Thus, the other Guantanamo habeas cases eventually made their way back to the Supreme Court on the question of the constitutionality of the habeas stripping provisions of the DTA and MCA. In the consolidated cases Boumediene v. Bush and Al-Odah v. United States, decided June 12, 2008, the Supreme Court held in a 5-4 opinion that aliens designated enemy combatants and detained at Guantánamo
Bay, have the constitutional right to habeas corpus. The Court held that § 7 of the MCA, which limited judicial review of the petitioners’ enemy combatant status, was an unconstitutional suspension of the writ of habeas corpus. Once again, the Court had ruled that the Guantanamo prisoners could challenge their detention in federal courts.