Bush, Gitmo detainees headed back to court
“The legal battle over the rights of the hundreds of men held as enemy combatants at Guantánamo Bay has lasted more than five years, including two rounds in the Supreme Court. Now, as the parties prepare for their next Supreme Court confrontation this fall, the arguments have come full circle to where they began: over the role of the federal courts,” Linda Greenhouse reports. cdkey para office 2003
During its ‘07-‘08 Term, which begins in October, the Court will hear argument in the companion cases of Boumediene v. Bush and Al Odah v. U.S. In an amicus brief, the Cato Institute sets the stage:cdkey para office 2003
After the terrorist attacks of September 11, 2001, the President dispatched U.S. armed forces to Afghanistan to attack al-Qaeda base camps and to subdue the Taliban regime. Since the invasion of Afghanistan, the U.S. military has taken thousands of prisoners. Most have been imprisoned at U.S. facilities in that theatre, while others have been transferred to the U.S. Naval Base at Guantanamo Bay, Cuba. The President has determined that the Guantanamo prisoners are not entitled to prisoner-of-war status under the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. No. 972.
In 2002, several relatives of certain prisoners filed habeas corpus petitions in the U.S. District Court for the District of Columbia challenging the legality of their imprisonment at Guantanamo. These prisoners did not challenge the authority of the President and the military to take suspected members of hostile forces into custody, but they did allege that they had never been a combatant against the U.S. and that they had been denied access to counsel and access to the civilian court system. The Government responded to those claims by urging the District Court to summarily dismiss the petitions. According to the Government, recognizing jurisdiction over the prisoners’ habeas claims would “intrude” on the power of both the Executive and the Congress. This Court heard this controversy in 2004. In Rasul v. Bush, 542 U.S. 466 (2004), this Court held that the federal habeas statute, 28 U.S.C. §2241, extends to prisoners held by the U.S. military at the Guantanamo Bay facility.
After Rasul, Congress modified §2241 by enacting the Military Commissions Act, Pub. L. No. 109-366, 120 Stat. 2600. That law deprives courts of jurisdiction to consider habeas claims. Petitioners maintain that such deprivation is unconstitutional. The Government, in turn, renews its argument that the courts cannot “intrude” on the power of the Executive to prosecute a war or Congress’s power to delineate the jurisdiction of the federal courts. Thus, this Court must now confront grave questions concerning separation of powers principles and the boundaries of the constitutional provision for the writ of habeas corpus. [Emphasis added.]
Here’s the decision from the U.S. Court of Appeals for the D.C. Circuit, which ruled for the Government.cdkey para office 2003
The brief for petitioner Boumediene is here; the one for petitioner Al Odah is here. And here is an especially interesting amicus brief. It comes from Israeli military officers who are also professors of constitutional law. They write in support of the petitioners. See in particular Appendix II, beginning on page 98 of the pdf, which compares and contrasts American and Israeli procedures for the handling of unlawful enemy combatants.cdkey para office 2003
Briefs from the Government and its supporters are due Oct. 9.cdkey para office 2003