# Amicus Curiae Brief — Boumediene v. Bush

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 723

## Text

FILED

@ @| aue2samr
Nos. 06-1195, 06-1196 CLERK
In the | canes ee RT, U.S.

Supreme Court of the Gnited States ~

LAKHDAR BOUMEDIENE, ET AL.,

Petitioners,
Vv.

GEORGE W. BUSH, ET AL.,
Respondents.

KHALED A.F. At ODAH, ET AL.,
Petitioners,
Vv.

UNITED STATES OF AMERICA, ET AL.,
Respondents.

On Writs of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF THE AMERICAN BAR
ASSOCIATION IN SUPPORT OF PETITIONERS

WILLIAM H. NEUKOM

PRESIDENT*
AMERICAN BAR ASSOCIATION

321 N. CLARK STREET

CHICAGO, IL 60610

(312) 988-5000
SIDNEY S. ROSDEITCHER
LYNN B. BAYARD
DOUGLAS M. PRAVDA
CARMEN K. CHEUNG
JANA RAMSEY

COUNSEL FOR AMICUS CURIAE
*Counsel of Record

AuGust 24, 2007

TABLE OF CONTENTS

Ts OP ATI i vcnccccencescccecscsvsscssseeenscncsesesesvnstanes ii
INTEREST OF THE AMICUS CURIAE .....000000000000000.200.. I
SUMMARY OF ARGUMENT......0000........cccecsessssecessereresees 5
IIIITIIIITITED sslidcnicslecsetsincseiinidaniaietitadeddccrnsinnpsdaaticcinnguisiimiigiiaiign 6
L. Habeas Corpus Is Fundamental to Our

Constitutional Scheme and Only the Most
Narrowly Limited Exceptions to Its

Availability Are Permissible .................c.0ccc0cseceeeeeeees 6

LI. The Denial of Habeas Corpus to Guantanamo
Detainees Is Inconsistent with the Constitution
I aileintesniceininnieciinsetiniiniipdastantictons 10
A. A “Sovereign Territory” Limitation Is

Inconsistent with the Constitutional
Role of the Writ of Habeas Corpus and
aliases l|

B. Reaffirmation of Guantanamo
Detainees’ Right to Habeas Corpus
Will Help Restore the United States’
Role as a Model for the Rule of Law
In the World Community ..................0...0.08. 17

2 D5 NSE LEMOS |

TABLE OF AUTHORITIES

FEDERAL CASES

Al Odah v. United States, 346 F. Supp. 2d |
a MP acisiscadanicinnaiiceansinseseasisiatiniidetsctsciovainngamigiitbinl 11
Ex parte Bollman, 8 U.S. (4 Cranch ) 75 (1807)............ 11,13
Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007)...........16
Bowen v. Johnston, 306 U.S. 19 (1939) .000 0000 cece 10
Crawford v. Washington, 541 U.S. 36 (2004) .00000000c0cc.. 12
Harris v. Nelson, 394 U.S. 286 (1969) ..00.0..0...cccccceeeeee 11,12
Re Me et __, | ENE 1]
Johnson v. Avery, 393 U.S. 483 (1969)..........cccccececceeee eee eee 10
Johnson v. Lisentrager, 339 U.S. 763 (1950).........cccccceeeeeee 14
Marsh v. Chambers, 463 U.S. 783 (1983) ........ccccccce ce ceeeeeees 13
Rasul v. Bush, 542 U.S. 466 (2004) 000.0... cccceeeeeeee es passim
Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888)............ 14

FEDERAL STATUTES

Detainee Treatment Act of 2005, Pub. L. No. 109-148,
119 Stat. 2680 (2005), amended hy Military
Commissions Act of 2006, Pub. L. No. 109-366,
ee ee I iil ciccintisiahiiicen lanitsinhichiadindhscnladleaseeiadi 16

The Judiciary Act of 1789, Act of Sept. 24, 1789,

Fe is ee iio tichttcllsnentnsstinncnesininveneapienses 13
INTERNATIONAL CASES
A v. Secretary of State for the Home Department,
SIRE HUIS: Wiechinpctisinieninidimiadindiomapscincemonesees 20, 21
Aksoy v. Turkey. 23 Eur. Ct. H.R. 533 (1996).......0.000 cee 20

Charkaoui v. Canada (Citizenship and Immigration),
Baa. A A iccncccihtndininidevcmnccainsnionsonionse 19

HCJ 3239/02, Marab.v. IDF Commander in the
West Bank, [2002] Isr SC 57(2)349..0.0.....c.ccccceeeeeeeee 2|

INTERNATIONAL TREATIES
AND LEGISLATIVE MATERIALS

[European] Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4, 1950,
entered into force Sept. 3, 1953,
Fn ON i aeipiadneinclansirrsiptnivdeciinenpetiuneasninsarscensesente 18

Eur. Parl., European Parliament Resolution on
Guantanamo, P6_TA(2006)0070 ....0.0.. 2... eee 22

Organization of African Unity, African Charter on
Human and People’s Rights, June 27, 1981,
entered into force Oct. 21, 1986, 21 1.L.M. 58. ....... 18

Organization of American States, American Convention
on Human Rights, Nov. 22, 1969, entered into
force July 18, 1978, O.A.S.T.S. No. 36,
gL RMR T ee EOE Me ae 18

Organization of American States, American Declaration
of the Rights and Duties of Man (1948) 9th Int’l
Conference of American States, O.A.S. Official
Record, OEA/Ser.L/V./IL.23, doc.21 rev.6............... 18

United Nations International Covenant on Civil _
and Political Rights, entered into force
Mar. 23, 1976, 999 U.N.T.S. 717 .........cccceceeeeeees 11, 18

Universal Declaration of Human Rights, G.A. Res. 217A
(III), U.N. Doc. A/810 (1948) oo cceeeeeeeeees 18

BOOKS, ARTICLES, AND REPORTS

4 Debates in the Several State Conventions on the
Adoption of the Federal Constitution, as
Recommended by the General Convention at

~ Philadelphia in 1787 555 (Jonathan Elliot ed.,

BB a i iictcschastistininsetctiniicinitteiidiaaaigieanne 8
The Federalist No. 84 (Alexander Hamilton) (Isaac

& ,__, , arena EEN aE MER NEN 9
2 The Records of the Federal Convention of 1787 (Max

LB a een 9
Restatement (Third) of Foreign Relations (1987)................ 19

Rex A. Collings, Jr., Habeas Corpus for Convicts -
Constitutional Right or Legislative Grace?.
4D Cal, &.. Rou. FEO CADRE wriecenestesinevinsSitissininnamensesaistih 9

Joshua Denbeaux & Mark Denbeaux, No-Hearing Hearings:
CSRT: The Modern Habeas Corpus? (2006)........... 17

William F. Duker, A Constitutional History of Habeas
Capen (SSID asccnsssisncssonssocnissintiniocsipiamiianmmaaain 7,8

iv

Mary Ann Glendon, A World Made New:
Eleanor Roosevelt and the Universal
Declaration of Human Rights (2001) .................00. 18

Frederick Pollock & Frederic W. Maitland, | The
History of English Law (2d ed. 1923) ...........6.c00000000 7

R.J. Sharpe, The Law of Habeas Corpus (2d ed. 1989)......... 8

Jeremy Waldron, Torture and Positive Law, |05 Colum.
Re , SIN SII asrsnssinesensesseseqnemsnemesnesnuessscsconncet 23

U.N. Econ. & Soc. Council, Report of the Chairperson
of the Working Group on Arbitrary Detention;
Situation of detainees at Guantanamo Bay,

U.N. Doc. E/CN.4/2006/120 (Feb. 27, 208 SR

U.S. Department of State, Country Report on
Human Rights Practices 2006 in Burma,
LE Rae 19

U.S. Department of State, Country Report on
Human Rights Practices 2006 in Egypt,
EE os

MISCELLANEOUS

Memorandum from Deputy Secretary of Defense Gordon
England, Implementation of Combatant Status
Review Tribunal Procedures for
Enemy Combatants Detained at U.S. Naval Base
Guantanamo Bay, Cuba (July 14, 2006) .............. —

American Bar Association: Lord Peter Goldsmith, Attorney
General United Kingdom Addresses House of
Delegates (speech delivered Feb. 12, 2007).............22

Vv

{

Thomas Jefferson, First Inaugural (Mar. 4, 1802),
reprinted in Inaugural Addresses of the Presidents
of the United States, S. Doc. No. 101-10 (1989)........ 8

/
Letter from Thomas Jefferson to James Madison (Dec. 20,
1787), reprinted in 8 Documentary History of the
Ratification of the Constitution (1988)..............000000+ 8

‘

a

INTEREST OF THE AMICUS CURIAE'

The American Bar Association (“ABA”) is_ the
leading national membership organization of the legal
profession. The ABA’s membership of more than 413,000
spans all 50 states and includes attorneys in private law
firms, corporations, nonprofit organizations, government
agencies, and prosecutorial and public defender offices, as
well as legislators, law professors, and students.

The ABA’s mission is “to be the national
representative of the legal profession, serving the public and
the profession by promoting justice, professional excellence
and respect for the law.” Among the ABA’s goals is “[t]o
increase public understanding of and respect for the law, the
legal process, and the role of the legal profession” and “[tjo
advance the rule of law in the world.” As the voice of the
legal profession, the ABA has a special interest and
responsibility in protecting the rights guaranteed by the
Constitution, safeguarding the integrity of our legal system,
and ensuring the sanctity of the rule of law.

Pursuant to Supreme Court Rule 37.6, amicus curiae certifies that no
counsel for a party authored this brief in whole or in part and that no
person or entity, other than amicus, its members, or its counsel, has
made a monetary contribution to its preparation or submission.
Letters of consent by the parties to the filing of this brief have been
lodged with the Clerk of this Court.

Neither this bnet nor the decision to file it should be interpreted to
reflect the views of any judicial member of the American Bar
Association. No inference should be drawn that any member of the
Judicial Division Council bas participated in the adoption or
endorsement of the positions in this briet. This brief was not
circulated to any member of the Judicial Division Council prior to
filing.

te

See ABA Mission and Association Guvuals. availabie at
http://www.abanet.org/about goals. hum (last visited Aug. 20, 2007)

~~

Preserving access to the writ of habeas corpus, which
is essential to these goals, long has been a core ABA
concern. Over the course of decades, the ABA has
developed special competence in this area through its work to
protect the habeas nghts of persons deprived of their liberty
by arrest or detention.

_ The ABA’s efforts to promote the rule of law, both in
this country and in other countries through its Rule of Law
Initiative, have confirmed that other fundamentally
important legal protections depend upon the writ of habeas
corpus. Quite simply, the rule of law has no force against a
government that can arrest and detain persons at will with no
judicial review. Thus, in working to establish legal systems
in developing countries, the ABA has pressed for judicial
review of the legality of executive detention.

The ABA has expressed its.deep concern about the
need to preserve the writ of habeas corpus at home,
particularly after the events of September 11, 2001. In
February 2002, the ABA’s House of Delegates adopted a
policy urging that proceedings before military tribunals
guarantee the right to petition for habeas corpus, and that
they comply with the International Covenant on Civil and
Political Rights, which prohibits executive detention without
judicial review. 8C Revised Recommendations (adopted Feb.
2002).* In February 2003, the House of Delegates adopted a

}

See About the ABA Rule of Law Initiative, available at
hitp://www.abanet.org/rol/about. shtml! (describing the activities of
the ABA’s Rule of Law Initiative) (last visited Aug. 20, 2007).

* Available al hitp://www.abanet.org/poladv/letters/107th/
militarytrib&c pdf (last visited Aug. 20, 2007). The House of
Delegates ts the ABA’s policymaking body. comprising more than
500 delegates and represefting various entities within the ABA, as

well as the legal profession as a2 whole. Reports thal recommend the
.,

—

policy urging meaningful judicial review of the status of
alleged enemy combatants. While this policy refers to
citizens and residents of the United States, the ABA also
emphasized that “Congress and the Executive Branch should
consider how the policy adopted by the United States may
affect the response of other nations to future acts of
terrorism.” Task Force on Treatment of Enemy Combatants,
Revised Report 109 (adopted Feb. 10, 2003). °

When issues regarding habeas corpus have come to
the fore in cases before United States courts, the ABA has
advanced these same principles of the rule of law. The ABA
filed briefs amicus curiae on behalf of petitioners before this
Court in Hamdi vy. Rumsfeld, 542 U.S. 507 (2004)°, and
before the United States Court of Appeals for the Second
Circuit in Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003),
rev'd 542 U.S. 426 (2004)’, urging in both cases that United
States citizens and persons residing in the United States
detained by the Executive Branch be afforded a meaningful
opportunity to challenge the basis for their detention before

adoption of specific policy positions are submitted by ABA sections,
committees, affiliated organizations, state and local bar associations,
amd individual ABA members. The full House votes on the
recommendations and those that are approved become official ABA
policy. See ABA Leadership, House of Delegates - General
Information, available at http://www.abanet.org/leadership/
delegates. himl (last visited Aug. 20, 2007).

Available at hitp://www.abanet.org/leadership/recommendations03/
109 pdf (last visited Aug. 20, 2007).

4vailable at http://www.abanct.org, irr/hamdibnefteb04 pdf (last
visited Aug. 20, 2007).

4vailable at http://www abanet org/tr/padillabrictyuly03 pdf (last
visited Aww 20, 2007).

an independent judicial officer and to have assistance of
counsel in making that challenge.

Because the ABA and its members have observed
firsthand the importance of habeas corpus as “an important
check on the power of executive detention,” the ABA
“strongly opposed” the provision of the Military
Commissions Act of 2006 now at issue in this case, which
seeks to strip courts of jurisdiction to consider existing
habeas corpus claims for certain alien detainees in United
States custody. Letter from Karen J. Mathis, President,
American Bar Association, to United States Senators (Sept.
27, 2006).*

In a similar letter a year earlier, the ABA urged the
Senate to reject similar jurisdiction-stripping provisions of
the Detainee Treatment Act because

[t]he principle of independent judicial review of
governmental detention was important enough
to our nation’s founders to enshrine in the
Constitution, not to be suspended by Congress
except in the direst circumstances. Preserving
the opportunity for Guantanamo detainees to
seek habeas review in our federal courts will
demonstrate our nation’s commitment to its own
constitutional values and serve as an important
example to the rest of the world.

Avatlahle at htip://www.abanet.org/poladv .letters/antiterror/
06092 7letter senmilcom.pdf (last visited Aug. 20, 2007).

4

oe

Letter from Michael S. Greco, President, American Bar
Association, to United States Senators (Nov. 14, 2005).’

Through its overseas programs and its interactions
with bar associations in other countries, the ABA is keenly
aware of the importance of America’s leadership role in
promoting the rule of law abroad. Members participating in
Rule of Law Initiative programs or conducting business in
other countries have observed that a common respect for the
rule of law facilitates legal reform efforts abroad and protects
American citizens abroad by allowing our government to
insist that those citizens be treated according to international
norms. From these experiences, the ABA also appreciates
that limiting habeas nights not only would undermine the
moral authority of the United States in promoting the rule of
law, but also would have negative effects on the treatment of
Americans abroad, our nation’s ability to ensure fidelity to
international agreements to which the United States is a
party, and needed international cooperation in the fight
against terrorism.

SUMMARY OF ARGUMENT

The writ of habeas corpus is the cornerstone of the
rule of law and should not be weakened by exceptions of the
kind relied on by the Court of Appeals. The Founders
recognized the critical role of the writ in our Constitution.
History, dating back to the Magna Carta, taught them that
executive detention without judicial review is anathema to
the rule of law. The inclusion of the Suspension Clause in
the Constitution reflects their judgment that the writ is most
needed when it, and the rule of law, are under the most
intense assault and that exceptions to the writ, even in times

4vailable at hitp://www.abanet org/polady letters antiterror
O51 1 14ietter detainees.pdf (last visited Aug. 20, 2007).

5

of emergency, are inconsistent with the rule of law and
threaten to produce tyranny. Hence, only in time of rebellion
or invasion does the Constitution authorize Congress to
suspend the writ. Now is not such a time.

Exclusion of Guantanamo detainees from the
protections of habeas corpus on the ground that Guantanamo
is not “sovereign territory” of the United States is the very
kind of evasion of the writ that the Suspension Clause sought
to prevent. Such a limitation of the writ would permit the
creation of a law-free zone where individuals could be
deprived of their liberty without adequate judicial review.
This is incompatible with the rule of law.

s

In significant part due to the leadership of the United
States, the. concept of the Great Writ is now almost
’ universally accepted by the world community. The ABA, in
its efforts to promote the rule of law in developing countries,
has emphasized the fundamental importance of judicial
review of detention. Detentions at Guantanamo — in most
cases for more than five years — without adequate judicial
review, however, have undermined the leadership role
‘heretofore exercised by the United States in the world
community. Reaffirming the rights to habeas corpus of the
detainees presently before this Court would help restore our
nation’s traditional role as the symbol of liberty and the rule
of law.

ARGUMENT

I. Habeas Corpus Is Fundamental to Our
Constitutional Scheme and Only the Most .
Narrowly Limited Exceptions to Its Availability
Are Permissible.

The ABA's efforts in support of habeas corpus in this
country and in training lawyers in developing countries
6

reflect an appreciation of its critical role from the very
inception of our constitutional system. The Founders
recognized that the writ was one of the essential protections
needed to establish a government of laws, not men, and that
it was necessary to ensure that the great purposes of the writ
would not be undermined by evasive strategies designed by
the Executive Branch or exceptions enacted by Congress.
Accordingly, the Founders enacted Article I, Section 9,
Clause 2 of the Constitution, which provides that “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 “Suspension Clause”).
Since that time, this Court has consistently applied the writ to
“a wide variety of cases involving executive detention, in
wartime as well as in times of peace.” Rasu/ v. Bush, 542
U.S. 466, 474 (2004).

The Suspension Clause reflects the Founders’
recognition of the lessons taught by English history, from the
principle established in Magna Carta “that the king is and
shall be below the law” (Frederick Pollock & Frederic W.
Maitland, | The History of English Law 173 (2d ed. 1923)),
to the efforts by Parliament in the 17th century to prevent
monarchs from evading the writ of habeas corpus.

For example, during the Protectorate period that
followed the English Civil War, prisoners were moved
between jails to prevent service of habeas corpus petitions, or
sent to overseas prisons to avoid the reach of the courts
altogether. See William F. Duker, A Constitutional History
of Habeas Corpus 48-53 (1980). Parliament, however,
refused to accept these practices. In 1667, Parliament
impeached Edward Hyde, Earl of Clarendon, because, among
other things:

>
2
4
‘
4

ee) ee

ae

he hath advised and procured divers of his
majesty’s subjects to be imprisoned against law,
in remote islands, garrisons, and other places,
thereby to prevent them from the benefit of the
law, and to produce precedents for imprisoning
any other of his majesty’s subjects in like
manner.

Duker, supra, at 53 (quoting Proceedings in Parliament
against Edward Earl of Clarendon, Lord High Chancellor of
England, (1663-1667) 6 St. Tr. 291).

To curb such practices, Parliament enacted the
Habeas Corpus Act of 1679, 31 Car. 2, c.2 (1679). While the
Act itself did not cure all deficiencies, “[pjerhaps the most
important thing the Act did was to . . . demonstrate that
abuses with respect to habeas corpus would not be tolerated.”
R.J. Sharpe, The Law of Habeas Corpus \9 (2d ed. 1989).
Thus, the Act “established the principle that the efficacy of
habeas corpus is not to be thwarted.” /d. at 20.

It was with the knowledge of the Great Writ’s history
that the Founders adopted the Suspension Clause. The
Founders recognized habeas corpus to be an essential pillar
of the rule of law. Thomas Jefferson identified habeas
corpus as one of the “essential principles of our Government”
(Thomas Jefferson, First Inaugural (Mar. 4, 1802), reprinted
in Inaugural Addresses of the Presidents of the United States,
S. Doc. No. 101-10, at 16 (1989)), stating that the new
Constitution must protect “the eternal & unremitting force of
the habeas corpus laws” (Letter from Thomas Jefferson to
James Madison (Dec. 20, 1787), reprinted in 8 Documentary
History of the Ratification of the Constitution 250 (1988)).
James Madison extolled the writ as a “sacred” principle in
the “administration of preventative justice.” 4 Debates in the
Several State Conventions on the Adoption of the Federal

8

Constitution, as Recommended by the General Convention at
Philadelphia in 1787 555 (Jonathan Elliot ed., 2d ed. 1881).
Alexander Hamilton declared that “the practice of arbitrary
imprisonments, [has] been, in all ages, the favorite and most
formidable instrument of tyranny.” The Federalist No. 84, at
474 (Isaac Kramnick ed. 1987).

The English monarch’s repeated attempts to
circumvent the writ and the frequent suspension of habeas by
Parliament itself'° made the Founders wary of creating any
exceptions to the protections of habeas corpus. They also
recognized that the writ would come under assault, often
when the rule of law was most at risk. Thus, they not only
refused to give the Executive Branch power to restrict the
writ but also tightly limited Congress’ power to do so.

At the Constitutional Convention, Charles Pinckney
introduced proposed language providing that “the Wnt of
Habeas corpus . . . shall not be suspended by the Legislature
except upon the most urgent and pressing occasions, and for
a limited period not exceeding . . . months.” 2 The Records
of the Federal Convention of 1787 341 (Max Farrand ed., 3d
ed. 1966). Objecting that this language was not strong
enough, Edward Rutledge proposed that habeas corpus be
declared “inviolable” as he could envision no justification for
its suspension. /d. at 438. Finally, Gouveneur Morris
offered the compromise that became the Suspension Clause
(with some minor changes in capitalization): “The privilege
of the writ of Habeas Corpus shall not be suspended, unless
where in cases of Rebellion or invasion the public safety may
require it.” /d. Thus the Founders considered, but refused to
allow, exceptions to the writ even for “the most urgent and

See, eg. Rex A. Collings, Jr.. Habeas Corpus for Convicts -
Constitutional Right or Legislative Grace?, 40 Cal. L. Rev. 335, 339-
40 (1952).

9

pressing occasions,” instead restricting suspensions to
“Rebellion or invasion.”

Tellingly, while specific guarantees of individual
liberties were added to the original Constitution by the Bill of
Rights and later amendments, the Suspension Clause is a
guarantor of liberty found in the original Constitution. Its
placement there, together with prohibitions on ex post facto
laws and bills of attainder, reflects its role as one of the
principal bulwarks against Executive and Legislative
tyranny. Like the separation of powers and judicial
independence, the Suspension Clause is part of the
fundamental structure of the Constitution intended to
preserve the rule of law. :

This Court has “constantly emphasized the
fundamental importance of the writ of habeas corpus in our
constitutional scheme.” Johnson v. Avery, 393 U.S. 483, 485
(1969) (citation omitted). As this Court once observed: “It
must never be forgotten that the writ of habeas corpus is the
precious safeguard of personal liberty and there is no higher
duty than to maintain it unimpaired.” Bowen v. Johnston,
306 U.S. 19, 26 (1939) (citation omitted).

I. The Denial of Habeas Corpus to Guantanamo
Detainees Is Inconsistent with the Constitution
and the Rule of Law.

The Court of Appeals’ holding that Petitioners may
be denied habeas corpus because Guantanamo is not a
“sovereign territory” of the United States is the very kind of
limitation of the writ’ the Founders intended to prevent when
they adopted the Suspension Clause. Such a distinction
creates an area where individual rights are not judicially
enforceable, thus undermining the most fundamental attribute
of the rule of law. Moreover, it is difficult to assert that

10

developing countries should follow the rule of law if our
government can create an area where the writ is not
recognized. Affirmance of Petitioners’ right to habeas
corpus will not only be consistent with the original intent of
the Founders, but will also be consistent with our nation’s
commitment to promoting the rule of law in the world
community.

A. A “Sovereign Territory” Limitation Is
Inconsistent with the Constitutional Role of
the Writ of Habeas Corpus and the Rule of
Law.

The Writ of Habeas Corpus provides the opportunity
for a searching review by an impartial tribunal of the legal
and factual basis for detention.'’ Without full habeas and all
of its attendant procedural rights — the right to review
evidence, the right to an attorney, the right to introduce one’s
own evidence'’ — anyone detained will not have a meaningful

'! See INS. v. St. Cyr, 533 U.S. 289, 304-305 (2001) (“The writ of
habeas corpus has always been available to review the legality of
executive detention”) (citations omitted); Ex parte Bollman, 8 U.S.
(4 Cranch) 75, 125, 130 (1807) (Marshall, C.J.) (court required to
“fully examine[] and attentively consider[]” the facts and testimony
on which the habeas petitioners were imprisoned); see a/so Harris v.
Nelson, 394 U.S. 286, 298 (1969) (“Petitioners in habeas corpus
proceedings, as the Congress and this Court have emphasized . . . are
entitled to careful consideration and plenary processing of their
claims including full opportunity for presentation of the relevant
facts.”). See also, e.g., United Nations International Covenant on
Civil and Political Rights (“ICCPR”), art. 9, § 4, entered into force
Mar. 23, 1976, 999 U.N.T.S. 717 (ratified by the United States on
June 8, 1992).

'2 See Harris, 394 U.S. at 298 (petitioners in habeas proceedings are

entitled to seek and introduce evidence), A/ Odah v. United States,

346 F. Supp. 2d 1, 8 (D.D.C. 2004) (“. . . Petitioners are entitled to

counsel . . . in order to properly litigate the habcas petitions . . .

opportunity to demonstrate that “error, neglect or evil
purpose has resulted in his unlawful confinement and that he
is deprived of his freedom contrary to law.” Harris, 394 U.S.
at 292.

The Court of Appeals nevertheless upheld the denial
of the writ based on the ground that Guantanamo, although
subject to the exclusive jurisdiction of the United States
under an indefinite lease that Cuba is powerless to terminate,
is nonetheless not “sovereign territory” of the United States.
The denial of habeas based on such a distinction is at odds
with the history and language of the Suspension Clause and
the great purposes of the writ as a comerstone of the rule of
law. It constitutes the very type of evasion of the writ that
the Suspension Clause was designed to prevent.

The ABA recognizes the pressures on the Executive
Branch to consider every measure possible to protect the
nation in times of peril. History cautions, however, that it is
just such pressures and just such times that can undermine
basic liberties essential to the rule of law. It was precisely
for that reason that the Founders, in framing the Suspension
Clause, rejected language that would have given Congress
power to suspend the writ in “the most pressing and urgent —
conditions” and limited such power solely to cases of
rebellion and invasion. See pp. 8-10, supra.

This Court’s analysis in Rasu/ confirms that the
availability of the historic function of the writ as a safeguard
of individual liberty should not tum on geographical niccties
such as those relied upon here. As the Court explained:

before the Court and in the interest of justice.”); cf Crawford v.
Washington, 541 U.S. 36, 49 (2004) (“[I}t is a rule of the common
law, founded on natural justice, that no man shall be prejudiced by
evidence which he had not the liberty to cross examine.”) (citation
omitted).

12

As Lord Mansfield wrote in 1759, even if a
territory was “no part of the realm,” there was
“no doubt” as to the court’s power to issue writs
of habeas corpus if the territory was “under the
subjection of the Crown.” King v. Cowle, 2
Burr. 834, 854-855, 97 Eng. Rep. 587, 598-599
(K.B.) Later cases confirmed that the reach of
the writ depended not on formal notions of
territorial sovereignty, but rather on the practical
question of “the exact extent and nature of the
jurisdiction or dominion exercised in fact by the
Crown.” Ex parte Mwenya [1960] | Q.B. 241,
303 (C.A.) (Lord Evershed, M.R.).

Rasul, 542 US. at 482.

The Judiciary Act of 1789, enacted contempor-
aneously with the Constitution, demonstrates that the
Founders did not rely on such “formal notions of territorial
sovereignty” but on the practical realities of government
detention. Thus the 1789 Act provided that federal courts are
authorized to entertain petitions for the writ of habeas corpus
from prisoners “where they are in custody, under or by
colour of the authority of the United States... .” Act of
Sept. 24, 1789, ch. 20, § 14, | Stat. 82. See also Ex parte
Bollman, 8 U.S. at 95 (noting that the Judiciary Act of 1789
“was passed by the first congress of the United States . . .
{a]cting under the immediate influence of [the Suspension
Clause}, [and} they must have felt, with peculiar force, the
obligation of providing efficient means by which this great
constitutional privilege should receive life and activity’);
accord Marsh v. Chambers, 463 U.S. 783, 790 (1983) (an act
““passed by the first Congress assembled under the
Constitution, many of whose members had taken part in
framing that instrument, . . . is contemporaneous and weighty

13

evidence of its true meaning’’) (quoting Wisconsin v.
Pelican Ins. Co., 127 U.S. 265, 297 (1888)).

“

The same considerations of the practical realities that
require the exercise of the writ as a safeguard against
arbitrary detention were reflected in Rasul, when this Court,
in distinguishing Johnson v. Eisentrager, 339 U.S. 763
(1950), stated that the detainees in Eisentrager were proven
enemy aliens who were captured, tried and convicted of war
crimes in China and imprisoned in occupied Germany while: é

[The individuals held in Guantanamo] are not

nationals of countries at war with the United

States, and they deny that they have engaged in

or plotted acts of aggression against the United

States; they have never been afforded access to =

any tribunal, much less charged with and

convicted of wrongdoing; and for more than two
years they have been imprisoned in territory .
over which the United States exercises exclusive

jurisdiction and control.

Rasul, 542 U.S. at 475-76.

Justice Kennedy, in his concurrence in Rasul, stated
that for purposes of determining application of the wnt,

[w]hat matters is the unchallenged and
indefinite control that the United States has long
exercised over Guantanamo Bay. From a
practical perspective, the indefinite lease of
Guantanamo Bay has produced a place that
belongs to the United States, extending the
“implied protection” of the United States to it.

Id. at 487 (Kennedy, J., concurring), quotmg FEisentrager,
339 U.S. at 777-78. Justice Kennedy also stated that, unlike

14

the prisoners in Eisentrager, “the detainees at Guantanamo
Bay are being held indefinitely, and without benefit of any
legal proceeding to determine their status.” /d. at 487-88.

Moreover, Justice Kennedy viewed Eisentrager as
reflecting separation of powers concerns that required a
consideration of ui1 the circumstances to determine whether
they involved “a realm of political authority over military
affairs where the judicial power may not enter” or whether
they dictated that “the courts maintain the power and
responsibility to protect persons from unlawful detention
even where military affairs are implicated.” /d. at 487. After
noting that the petitioners in Eisentrager had been convicted
of violating the laws of war after a trial before a military
commission, he explained:

Indefinite detention without trial or other
proceeding presents altogether different
considerations. It allows friends and foes alike
to remain in detention. It suggests a weaker
case of military necessity and much greater
alignment with the traditional function of habeas
corpus. Perhaps, where detainees are taken
from a zone of hostilities, detention without
proceedings or trial would be justified by
military necessity for a matter of weeks; but as
the period of detention stretches from months to
years, the case for continued detention to meet
military exigencies becomes weaker.

Id. at 488.

The language and history of the Suspension Clause
and its essential role in maintaining the rule of law create a
heavy presumption against limits on the judicial power to
“protect persons from unlawful detention ....” /d. at 487.
As both the Rasu/ majority’s opinion and Justice Kennedy’s

15

concurrence make clear, no “military exigencies” are present
here that might overcome this presumption.

Finally, the government’s argument that the Detainee
Treatment Act (“DTA”) provides an adequate substitute for
habeas should be rejected. As Petitioners and others have
urged, review provided by the DTA fails to satisfy the
minimum requirements of due process because it is limited to
review by the Court of Appeals for the District of Columbia
of whether Combatant Status Review Tribunal (“CSRT”)
proceedings designating the detainee an “enemy combatant”
conform to the standards and procedures of the Department
of Defense (“DoD”).'’ See Boumediene v. Bush, 476 F.3d
981, 1005-07 (D.C. Cir. 2007) (Rogers, J., dissenting); Brief
of El-Banna Petitioners in A/ Odah, Argument II]; see also
Brief of Amicus Curiae The Association of the Bar of the
City of New York in Support of Petitioners.

In a CSRT proceeding, the detainee lacks assistance
of counsel, and the tribunal consists of military officers who
are informed at the outset that their DoD superiors have
already determined these prisoners to be enemy
combatants.'* Moreover, the detainee is denied access to
classified information that forms the basis for the
determination and is frequently denied any realistic

‘> Detainee Treatment Act of 2005, §1005(e), Pub. L. No. 109-148, 119
Stat. 2680 (2005), amended by Military Commissions Act of 2006,
Pub. L. No. 109-366, 120 Stat. 2600 (2006).

'* See Memorandum from Deputy Secretary of Defense Gordon
England, Implementation of Combatant Status Review Tribunal
Procedures for Enemy Combatants Detained at U.S. Naval Base
Guantanamo Bay, Cuba (July 14, 2006). available at
hitp://www.defenselink.mil/news/ Aug 2006/
d20060809CSRT Procedures.pdf (last visited Aug. 20, 2007). .

16

opportunity to submit evidence or testimony in his defense."
Conformance to such standards and procedures is not an
adequate substitute for habeas corpus review. —

B. . Reaffirmation of Guantanamo Detainees’
Right to Habeas Corpus Will Help Restore
the United States’ Role as a Model for the
Rule of Law In the World Commurity.

The principle of habeas corpus has now gained wide
acceptance as essential to the rule of law, as is reflected in
international human rights treaties, conventions and
jurisprudence. This is due in substantial part to the
leadership role of the United States and its efforts to promote
the rule of law.

The ABA has played a role in those efforts through
its Rule of Law Initiative, assisting countries ~ including the
former Soviet republics and countries in Europe, Eurasia,
Asia, Africa, the Middle East and Latin America — to develop
and implement legal reforms and respect for the rule of law
in all nations." The training programs that the ABA
conducts for attorneys and judges in these countries
emphasize that the writ is essential to ensuring governance
under the rule of law.’

> See Joshua Denbeaux & Mark Denheaux, No-Hearing Hearings:
CSRT: The Modern Habeas Corpus? 2-3 (2006), available at
hitp://law.shu.edu/news/final_no_hearing hearings report.pdf (last
visited Aug. 20, 2007).

‘© See About the ABA Rule of Law Initiative, available at
hitp://www.abanet.org/rol/about.shtml (last visited Aug. 20, 2007).

See Judicial Reform Programs, available at hitp://www.abanet.org/
rol/programs/judicial-reform. html and Legal Profession Reform
Programs, available at http://www. abanet.org/rol/programs/legal-

17

BY
-
-)
J ;
i
, <
o a ee” lhl Ul Ul eS

The United States played a primary role in the design
and adoption of the Universal Declaration of Human Rights,
which establishes the right to be protected from arbitrary
detention as one of the “equal and inalienable” rights of all
peoples.'* Similarly, the International Covenant on Civil and
Political Rights, to which the United States is a party,
provides that “[aJnyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before
a court, in order that that court may decide without delay on
the lawfulness of his detention and order his release if the
detention is not lawful.”'? Similar provisions are now found
in the American Convention or. Human Rights, the American
Declaration of the Rights and Duties of Man, the European
Convention for the Protection of Human Rights and
Fundamental Freedoms (“European Convention”), and the
African Charter on Human and Peoples’ Rights.”°

profession.html (describing the ABA's international training
programs for judges and attorneys) (last visited Aug. 20, 2007).

Universal Declaration of Human Rights, preamble, art 9, G.A. Res.
217A (Il, U.N. Doc. A/810 (1948). For the role of the United
States in the drafting and adoption of the Universal Declaration, see
Mary Ann Glendon, 4 World Made New: Eleanor Roosevelt and the
Universal Declaration of Human Rights (2001).

'? —ICCPR art. 9, § 4.

Organization of American States, American Convention on Human
Rights, art. 7, Nov. 22, 1969, entered into force July 18, 1978,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, (signed by the United States
June 1, 1977); Organization of American States, American
Declaration of the Rights and Duties of Man, art. XXV (1948) 9th
Int'l Conference of American States, OAS. Official Record,
OEA/Ser.L/V /IL.23, doc.21 rev.6 (adopted by the O.A.S., including
the United States); [European] Convention for the Protection of
Human Rights and Fundamental Freedoms, art. 5, Nov. 4, 1950,
entered into force Sept. 3, 1953, 213 U.N.T.S. 221; Organization of

18

The prohibition of detention without judicial review
‘is now a fundamental principle of international law. See,
e.g., Restatement (Third) of Foreign Relations § 702(e)
(1987) (“A state violates international law if, as a matter of
state policy, it practices, encourages, or condones .. .
prolonged arbitrary detention.”). It is also a basis on which
the United States judges the commitment of other countries
to the rule of law. See, e.g., U.S. Department of State,
Country Report on Human Rights Practices 2006 in Egypt,
_ March 6, 2007; U.S. Department of State, Country Report on
Human Rights Practices 2006 in Burma, March 6, 2007.

In the past half century, as terrorism has increased
throughout the world, foreign national and international
courts have upheld the right to judicial review of detention
notwithstanding serious security challenges.

The influence of the United States is made explicit in
a recent decision of the Canadian Supreme Court, which
relied in part on this Court’s decision in Rasul. In that case,
the Canadian Supreme Court struck down legislation
permitting detention up to 120 days without judicial review
for foreign nationals deemed ineligible to remain in Canada
for security reasons. Charkaoui v. Canada ee and
Immigration), S.C.C. 9, (Feb. 23, 2007).*' Observing that
“{ijt is an ancient and venerable principle that no person shall
lose his or her liberty without due process according to the
law, which must involve a meaningful judicial process,” id.
4 28 (citation and internal quotation marks omitted), the court
held that “foreign nationals, like others, have the right to

African Unity, African Charter on Human and People’s Rights, art. 6
and art. 7, June 27, 1981, entered into force Oct. 21, 1986, 21 1.L.M.
58.

** Available at hitp://scc.lexum.umontreal.ca/en/2007/2007scc9/2007
scc9. himl (last visited Aug. 20, 2007).

19

prompt review to ensure that their detention complies with
the law.” Jd. | 90 (citing, inter alia, Rasul v. Bush, 542 U.S.
466 (2004)).

Other cases in this area show the influence of the
Anglo-American principle of habeas corpus. Thus, in Aksoy
v. Turkey, 23 Eur. Ct. H.R. 533 (1996), the European Court
of Human Rights held that Turkey had violated Article 5 of
the European Convention by holding a suspected terrorist for
fourteen days without bringing him before a court. It
concluded:

Article 5 . . . enshrines a fundamental human
right, namely the protection of the individual
against arbitrary interference by the State with
his or her right to liberty. Judicial control of
interferences by the executive with the
individual’s right to liberty is an essential
feature of the guarantee embodied in Article
5(3), which is intended to minimize the risk of
arbitrariness and to ensure the rule of law.

Id. 4 76 (citation omitted).

National courts of the United Kingdom and Israel
have recently reaffirmed the principles of habeas corpus,
holding that anyone subject to executive detention has the
right to have his or her case heard by a court, notwithstanding
claims that such detentions are necessary to combat
terrorism.

In A v. Secretary of State for the Home Department,
[2004] UKHL 56, the House of Lords invalidated a provision
in the Anti-terrorism, Crime and Security Act 2001, which
permitted the detention of suspected alien terrorists who,
temporarily or indefinitely, could not be removed from the
United Kingdom. As Lord Nicholls of Birkenhead observed,

20

eS oe ad -

“[ijndefinite imprisonment without charge or trial is
anathema in any country which observes the rule of law.” /d.
q 74.

And, in 2002, the Israeli Supreme Court deemed
illegal two orders permitting the detention of suspected
terrorists in the West Bank for up to eighteen days without
judicial review. HCJ 3239/02 Marab v. IDF Commander in
the West Bank, [2002] Isr SC 57(2)349. The court held that
“the question of detention is to be brought promptly before a
judge or other official with judicial authority” regardless of
the circumstances because “[jJudicial intervention stands
before. arbitrariness; it is essential to the principle of rule of
law.” Id. $9] 26, 27; see also ¥ 32. ;

Throughout the world, treaties, cases, and
constitutions reflect the United States’ influence and
leadership in promoting the rule of law. The indefinite
detention of prisoners at Guantanamo without meaningful
judicial review, however, has led many of our allies to
question our departure from principles that we have been so
instrumental in developing.

On February 15, 2006, five special rapporteurs from
the United Nations issued a report in which they concluded
that: “[T]he legal regime applied to these [Guantanamo]
detainees seriously undermines the rule of law and a number
of fundamental universally recognized human rights, which
are the essence of democratic st ties. These include the
right to challenge the lawfulness of the detention before a
court and the right to a fair trial by a competent, independent
and impartial court of law .. . .” U.N. Econ. & Soc. Council,
Report of the Chairperson of the Working Group on
Arbitrary Detention, Situation of detainees at Guantanamo
Bay, 4.17, U.N. Doc. E/CN.4/2006/120 (Feb. 27, 2006)
(internal citations omitted).

The United States’ closest allies have urged the
United States government to follow the principles that it has
so long advocated to others. On February 12, 2006, the
European Parliament issued a resolution calling on the
United States to close Guantanamo and ensure that every
prisoner be “tried without delay in a fair and public hearing
by a competent, independent, impartial tribunal.” Eur. Parl.,
European Parliament Resolution on Guantanamo,
P6 TA(2006)0070. In a recent speech to the ABA House of
Delegates, Lord Peter Goldsmith, then Attorney General of
the United Kingdom, reminded the ABA that, with respect to
the treatment of detainees at Guantanamo, the threat of
terrorism “does not mean that we have an unlimited license
to throw away our values for the sake of expediency” and
that the rule of law requires “subjecting executive action to
the scrutiny of the democratic institutions and also of the
courts, for judicial scrutiny is a key part of the rule of law.”

Reaffirmation and restoration of the rights of the
Guantanamo detainees to habeas corpus is consistent with
our nation’s well-earned reputation as the leading advocate
and mode! for the rule of law. Respect for the rule of law
‘encourages its adoption abroad, solidifies our relations with
other nations, and protects Americans abroad. The denial of
habeas corpus to Guantanamo detainees undermines these
important goals.

The writ of habeas corpus has been described as the
“best example” of “archetypes” of the law that “sum up the

22

American Bar Association: Lord Peter Goldsmith, Attorney General
United Kingdom Addresses House of Delegates (speech delivered
Feb. 12, 2007), available at http://www.abavideonews.org/ABA404/
av.php#rss (last visited Aug. 20, 2007).

22

"A eee

spirit of a whole body of law that goes beyond what they
may be thought to require ‘on their own terms.” Jeremy
Waldron, Torture and “ositive Law, 105 Colum. L. Rev.
1681, 1723-24 (2005). As Professor Waldron observes,
habeas is archetypical “of our legal tradition’s emphasis on
liberty and freedom from physical confinement... [and] of
the law’s opposition to arbitrariness in regard to actions that
have an impact on that right.” /d. at 1724. Weakening the
Great Writ through an exception like that adopted by the
Court of Appeals would undermine those principles and the
very system of the rule of law envisioned by the Founders.

CONCLUSION

Accordingly, the judgment of the Court of Appeals
should be reversed. |

Respectfully submitted,

WILLIAM H. NEUKOM

PRESIDENT*
AMERICAN BAR ASSOCIATION

321 N. CLARK STREET

CHICAGO, IL 60610

(312) 988-5000
SIDNEY S. ROSDEITCHER
LYNN B. BAYARD
DOUGLAS M. PRAVDA
CARMEN K. CHEUNG
JANA RAMSEY

COUNSEL FOR AMICUS CURIAE

* Counsel of Record

August 24, 2007

23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0525%3A19. Public record. Not legal advice.