U.S. Supreme Court amicus curiae Brief Filed by FIDH, Amnesty International, Human Rights Institute of the International Bar Association, and the International Law Association

Brief Argues Detainees Possess the Right to Challenge the Lawfulness of their Detention

The International Federation for Human Rights (FIDH) along with Amnesty International, Human Rights Institute of the International Bar Association, and the International Law Association together signed an amicus curiae brief (friend of the court) in the Boumediene v. Bush and Al Odah v. United States cases. The brief in support of the petitioners was filed to the Supreme Court on Friday August 24th, 2007. The Center for Constitutional Rights (CCR), FIDH member organization in the U.S., represents the petitioners in the Al Odah case, which was consolidated with the Boumediene case.

The amicus brief was filed in support of men from the first habeas corpus petitions (challenging the lawfulness of their detention) submitted immediately after the landmark 2004 Supreme Court decision in Rasul v. Bush. Both Al Odah and Boumediene cases challenge the Military Commissions Act (MCA) of October 2006, 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).

The amici in the brief "respectfully urge [the Supreme] Court to find that by denying the availability of the writ of habeas corpus to Petitioners and similarly situated detainees, the MCA [Military Commissions Act] is an unconstitutional suspension of the writ that is also in direct conflict with the United States’ obligations under international law."

The brief further argues that "the right to challenge the lawfulness of one’s detention before a competent, independent and impartial tribunal is a cornerstone of international human rights law." The United States is notably bound by article 9 of the International Covenant on Civil and Political Rights (ICCPR), which states that "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."

Nearly 20 amicus briefs were filed in support of the two cases, from a broad range of sources that include the United Nations High Commissioner for Human Rights, former federal judges, former Judge Advocate General’s (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.

For more information, read the brief of amici curiae attached and the background summary on the cases below.

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“Background,” by the Center for Constitutional Rights (CCR)

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.

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.

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