Tuesday, August 28, 2007

Al-Odah & Boumediene Petitioners

After a flurry of filing on Friday, briefing by Petitioners in the Al-Odah and Boumediene cases (consolidated on certiorari) closed. The merits briefs and a sizable number of amicus curiae briefs are available on the Mayer, Brown, Rowe & Maw website. An impressive array of amici filed briefs in support of Petitioners, including the U.N. High Commissioner for Human Rights; European and Canadian parliamentarians; constitutional, federal jurisdiction, human rights, and humanitarian law experts and scholars, including former ICRC principals; Amnesty International; retired and former federal judges, diplomats, and military officers; the ABA; and the National Institute of Military Justice.
As discussed in prior posts (here, here, here, and here), the case presents the question, among others, of whether the Military Commission Act of 2006 (MCA) unconstitutionally suspended the writ of habeas corpus in violation of the Suspension Clause, which states:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The MCA purportedly barred the writ for pending cases wherein it states:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the U.S. who has been determined by the U.S. to have been properly detained as an enemy combatant or is awaiting such determination.

In prior proceedings, the government argued that the historic writ of habeas corpus would not have extended to alien enemy combatants held extraterritorially, so the MCA works no “suspension” within the meaning of the Constitution. This is notwithstanding that the Court in Rasul v. Bush, 542 U.S. 466, 480 (2004), clearly ruled that Guantánamo was within the territorial jurisdiction of the United States and that the writ did extend to Petitioners. Id. at 481-82. In the alternative, the Government has argued that Petitioners—as aliens outside sovereign U.S. territory—have no constitutional rights. Petitioners have responded that the Suspension Clause—situated in Article 1 of the Constitution—creates no individual rights, bur rather is a structural constraint on Congress providing

constitutional protection to a preexisting right founded in the common law: the right to obtain independent judicial review of a detention to ensure that no person is deprived of liberty by the Executive without a satisfactory basis in law and fact.

Al-Odah v. United States, Brief For Petitioners El-Banna et al.
Following the Supreme Court’s holding in Rasul v. Bush, the Department of Defense convened Combatant Status Review Tribunals (CSRTs) to determine whether an individual could be detained as an “enemy combatant.” The Department also established Administrative Review Boards (ARBs) to meet annually to determine whether this designation still holds. The Al-Odah & Boumediene cases also present the question of whether the CSRTs and ARBs provide an adequate substitute for habeas corpus where they provide only limited rights of participation and confrontation, deny the right to counsel, admit evidence procured by torture and coercion, admit hearsay and other evidence that would otherwise be inadmissible, are apparently subject to command influence, and are not subject to plenary review on appeal. Testimony from former CSRT participants about these procedural flaws in the process, including Lt. Col. Stephen Abraham (upper left, photo by Chris Carlson/NPR), probably led to the Supreme Court reversing its original denial of certiorari in the cases.
Stay tuned for the government's briefs....

[by IntLawGrrl Beth Van Schaack, under her pen name Eleanor Roosevelt]

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