In the Courts

Detentions at Guantanamo Bay

Recent Developments

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA), which, among other things, purports to strip detainees deemed to be “unlawful enemy combatants” of the opportunity to challenge their detention in U.S. courts, including those detainees whose habeas corpus petitions were pending in courts as of the date of the MCA. On November 1, 2006, counsel for Guantanamo detainees in Boumediene v. Bush, and Al Odah v. United States, two related cases, filed legal briefs in the D.C. federal appeals court challenging the habeas stripping provision (among other grounds). In February 2007, the D.C. federal appeals court rejected the detainees’ arguments that the MCA provision was unconstitutional. The Guantanamo detainees appealed the court’s decision to the U.S. Supreme Court, which declined to hear the appeal on April 2, 2007. In an unusual move, however, the Supreme Court reversed that decision on June 29, 2007, after counsel for the detainees sought a rehearing. The detainees’ legal briefs to the Court on the merits of their arguments were filed on August 24, 2007. Human Rights First is co-counsel to an unusual coalition of organizations, from across the ideological and religious spectrum, who filed a friend of the court brief in support of the detainees. The coalition brief, which argues that the right to challenge detention through habeas is integral to the U.S. Constitutional system of checks and balances, is available here.

Background:  A Chronology

Since January 2002, the United States has held close to 800 people, from more than 40 countries, in military custody at the U.S. Naval Base at Guantanamo Bay, Cuba.  Some of those detained at Guantanamo were taken into custody during the war in Afghanistan. Others were captured in places far from any battlefield, including Bosnia, Gambia and Thailand.  As of March 2007, approximately 385 detainees remain at Guantanamo.  Many of these 385 detainees have been held for five years, without charge, and with no independent judicial review of their detention. 

2004: The Supreme Court rules that Guantanamo detainees have the right to challenge their detention

In June 2004, the Supreme Court in a landmark ruling held that individuals detained at Guantanamo have access to U.S. courts.  In the companion cases, Rasul v. Bush and Al Odah v. United States, the Supreme Court ruled that Guantanamo Bay was U.S. territory for purposes of permitting detainees the ability to challenge the legality of their detention in U.S. courts.

The Court remanded the cases to the District Court for the District of Columbia for consideration of allegations that the detentions were improper.  On remand, cases filed by various Guantanamo detainees, including the petitioners in Al Odah v. United States, were consolidated.

Following the Supreme Court’s decision, several hundred detainees brought challenges to their detention.  Although some of the original petitioners in the Rasul v. Bush and Al Odah v. United States cases were returned to their home countries, petitions requesting the release of David Hicks, one of the Australian detainees, and four of the Kuwaiti detainees, among many others, were pending before the District Court for the District of Columbia.
 
2004: District Court for the District of Columbia rules that Guantanamo detainees have a right to an attorney

In 2004, in Al Odah v. United States, a U.S. federal district court judge ruled that the detainees in that case had a right to counsel that is “not a matter of government discretion.”  The court refused to permit the government’s requests to monitor of attorney-client meetings and to conduct a “classification review” of any notes taken during those meetings.
Also in 2004, in In Re Guantanamo Detainee Cases – a case representing consolidated Guantanamo detention challenges, including challenges by the original petitioners in Al Odah v. United States – Judge Joyce Hens Green for the District Court for the District of Columbia resolved a number of significant procedural issues, among them:  determining that the cases should not be transferred to the Eastern District of Virginia as requested by the government, issuing a protective order governing attorney-client communications, and granting the detainee petitioners’ requests for access to counsel.
 
2005: District Court for the District of Columbia splits on whether individuals detained in Guantanamo are protected by the U.S. Constitution

In January 2005, in In re Guantanamo Detainee Cases, U.S. District Judge Joyce Hens Green denied the government’s motion to dismiss challenges to detention brought by eleven detainees and held that Guantanamo detainees have rights under the U.S. Constitution – specifically Due Process rights under the Fifth Amendment – as well as judicially enforceable rights under the Third Geneva Convention – specifically, a right to have their prisoner of war status determined by a competent tribunal.
 
Judge Green held that the Combatant Status Review Tribunal (CSRT) procedures did not provide detainees with sufficient due process.  Judge Green found CSRTs to be constitutionally inadequate because they deny detainees access to material evidence used in determination of their “enemy combatant” status and do not permit the assistance of counsel to mitigate the government’s refusal to disclose classified information directly to the detainees.  She further found the CSRTs violate detainees’ rights because of the vague and potentially overbroad definition of “enemy combatant” and the manner in which the tribunals handle allegations of torture.  The government appealed the decision to the Court of Appeals for the District of Columbia Circuit.  Petitioners cross-appealed certain parts of Judge Green’s decision.

Contemporaneously with the decision by Judge Green, in the case of Khalid v. Bush, U.S. District Judge Richard J. Leon dismissed petitions from seven detainees who challenged their detention at Guantanamo, holding that “(1) non-resident aliens detained under [such] circumstances have no rights under the Constitution; (2) no existing federal law renders their custody unlawful; (3) no legally binding treaty is applicable; and (4) international law is not binding under these circumstances.” Petitioners appealed to the Court of Appeals for the District of Columbia Circuit.  On appeal, Khalid v. Bush was consolidated with In Re Guantanamo Detainees. The consolidated cases before the Court of Appeals for the District of Columbia Circuit were called Boumediene v. Bush and Al Odah v. United States.

2006:  Court of Appeals for the District of Columbia Circuit upholds habeas stripping provisions of the MCA

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA), which, among other things, purports to strip detainees deemed to be “unlawful enemy combatants” of the opportunity to challenge their detention in U.S. courts, including those detainees whose habeas petitions were pending in courts as of the date of the MCA.  

On November 1, 2006, plaintiffs in two related cases that challenge detentions at Guantanamo, Boumediene v. Bush and Al Odah v. United States, filed briefs in the Court of Appeals for the District of Columbia Circui arguing that the MCA’s apparent habeas-stripping provision is unconstitutional. 

2007:  Supreme Court Will Review Guantanamo Detainees’ Challenge to Legislation Stripping Court of Appeals for the District of Columbia Circuit, ruling

On February 20, 2007, the Court of Appeals for the District of Columbia Circuit rejected the detainees’ arguments in Boumediene v. Bush and Al Odah v. United States.  The appeals court held: (1) that the MCA applies to the detainees’ pending habeas petitions; (2) the habeas-stripping provision is not an unconstitutional suspension of the writ of habeas corpus<.  Counsel for the detainees appealed the D.C. Circuit’s decision to the Supreme Court, but on April 2, 2007, the Supreme Court declined to hear the appeal.   The Court reversed itself, however, on June 29, 2007.  This unusual move came after detainees’ counsel sought a rehearing from the Court of its April decision.  On August 24, 2007, counsel for the detainees filed legal briefs on the merits of their argument that the D.C. Circuit’s decision should be overturned and the detainees right to challenge their detention through habeas should be restored.  HRF is co-counsel to an unusual coalition of organizations, from across the ideological and religious spectrum, who filed a friend of the court brief in support of the detainees.  The coalition brief argues that the right to challenge detention through habeas is integral to the U.S. Constitutional system of checks and balances and is available here.

In the meantime, the government and counsel for detainees in two other cases, Bismullah v. Gates and Parhat v. Gates, have been engaged in arguments before the D.C. Circuit about the procedures that panels of the Circuit will follow in reviewing the decisions of Combatant Status Review Tribunals (CSRTs).  CSRTs were established in 2004 by the Pentagon, in the wake of the Supreme Court’s Rasul decision, which held that Guantanamo detainees had a right to challenge their detention.  CSRTs determine whether a detainee is an “enemy combatant” and Human Rights First has criticized [LINK:  http://www.humanrightsfirst.org/us_law/detainees/status_review_080204.aspx] them for failing to meet even fundamental due process requirements under U.S. and international law. 

Selected Briefs: 
Court of Appeals for the District of Columbia Circuit

Briefs:

• Al Odah v. United States,Nos. 05-5064, 05-5095 through 05-5116, , D.C. Cir., Nov. 1, 2006 (Petitioners’ Supplemental Brief addressing the Military Commissions Act of 2006)
• Boumediene v. Bush; Khalid v. Bush, Nos. 05-5062 & 05-5063, D.C. Cir., Nov. , 2006 (Petitioners’ Supplemental Brief addressing the Military Commissions Act of 2006)
• Al Odah v. United States, Nos. 05-5064, 05-5095 through 05-5116, , D.C. Cir., May 27, 2005 (Petitioners' Brief)

Selected Judicial Decisions: U.S. District Court for the District of Columbia

• Al Odah v. United States, 346 F.Supp.2d 1 (D.D.C. 2004) (holding that petitioners have right to counsel and that government cannot monitor meetings with counsel)
• Gherebi v. Bush, 338 F.Supp.2d 91 (D.D.C. 2004) (holding that the District Courts for the District of Columbia have jurisdiction for the purpose of resolving the Guantanamo Bay detainee habeas petitions)
• In re Guantanamo Detainees, 344 F.Supp.2d 174 (2004) (issuing a protective order and establishing access to counsel procedures)
• In re Guantanamo Detainees, 355 F.Supp.2d 443 (D.D.C. 2005) (holding that Guantanamo detainees are protected by the Fifth Amendment of the Constitution)
• Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C.2005) (holding that U.S. Constitution does not apply to Guantanamo detainees)
• Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) (staying habeas proceedings pending resolution of Hamdan v. Rumsfeld)

Selected Briefs and Materials: Supreme Court