Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195)

FILED

@ @! ae24207

Nos. 06-1195, 06-1196

————————— CLERK

! be the " JURPT, U.S.

Supreme Court of the Anited States

LAKHDAR BOUMEDIENE, ET AL.,

Petitioners,

Vv.

GEORGE W. BUSH, ET AL.,

Respondents.

KHALED A.F. AL 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

Sa Sa mn a ED

AUGUST 24, 2007

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

L.

II. The Denial of Habeas Corpus to Guantanamo

Detainees Is Inconsistent with the Constitution

CEE LALLA DEN ARREST

A. A “Sovereign Territory” Limitation Is

Inconsistent with the Constitutional

Role of the Writ of Habeas Corpus and

et SORRENTO

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 .......................4.

EIR ERA TILER I Va ce Ree COPE me el

TABLE OF CONTENTS

Habeas Corpus Is Fundamental to Our

Constitutional Scheme and Only the Most

Narrowly Limited Exceptions to Its

Availability Are Permissible ........................::0000++

SORE EEE EEE EEE EEE EEO HEHEHE RHEE

SEE EEE ERE EEE EERE EERE EEE

SORE EEO ERE OEE EEE HEE EEE EEE EEE HEHEHE EEE

TABLE OF AUTHORITIES

FEDERAL CASES

Al Odah v. United States, 346 F. Supp. 2d 1

ac SE a dihateditilidatehiceiabatiindansinastscccnctnensinnvedepustiiniiis II

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) ..00......cccccececeeeeeeeteees 10

Crawford v. Washington, 541 U.S. 36 (2004) .................. 12

Harris v. Nelson, 394 U.S. 286 (1969) ............cccccceceecees 11,12

PD Re Re | ana 11

Johnson v. Avery, 393 U.S. 483 (1969).........cccceeseeeeeeeseeees 10

Johnson v. Eisentrager, 339 U.S. 763 (1950) .............ce cee 14

‘Marsh v. Chambers, 463 U.S. 783 (1983) ...............cccceeeeeees 13

Rasul v. Bush, 542 U.S. 466 (2004) 0.0.0... ceccceeeeeeeeees passim

Wisconsin v. Pelican Ins. re 127 U.S. 265 (1888)............ 14

FEDERAL STATUTES

Detainee Treatment Act of 2005, Pub. L. No. 109-148,

119 Stat. 2680 (2005), amended by Military

Commissions Act of 2006, Pub. L. No. 109-366,

A es Sib tiinitricsintniecnsensonscsnnaninisieaticniins 16

. a

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

eR ES eee 13

INTERNATIONAL CASES

A v. Secretary of State for the Home Department,

SE SIs I ciininniccnnininiciasanectnitmmntanennenssonients 20, 21

Aksoy v. Turkey, 23 Eur. Ct. H.R. 533 (1996)... 20

Charkaoui v. Canada (Citizenship and Immigration),

pid ar a ck iieninlsintcctcinneniensnentsnvivscszcees 19

HCJ 3239/02, Marab.v. IDF Commander in the

West Bank, [2002] Isr SC 57(2)349..........ccccceeseeeeees 21

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,

SE TE ith icieicdeinntsciiidinnhinenctwtninenviensnnecens 18

Eur. Parl., European Parliament Resolution on

Guantanamo, P6_TA(2006)0070 ............ eee ceeeeeeee 22

Organization of African Unity, African Charter on

Human and People’s Rights, June 27, 1981,

entered into force Oct. 21, 1986, 21 I.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,

FT TAIN Dili bricessscncinticinecdeinnintsennenscenenniniursenete 18

Organization of American States, American Declaration

of the Rights and Duties of Man (1948) 9th Int’!

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.............::ceeees 11, 18

Universal Declaration of Human Rights, G.A. Res. 217A

(IIT), U.N. Doc. A/810 (1948) ooo. eee ceeeeeeeteeneeee 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.,

SE, rea sceiuinaisiesicthiininthediniaidiipiaaliniabdianianaadilaniiitasiinil 8

The Federalist No. 84 (Alexander Hamilton) (Isaac

So S.C e errr 9

2 The Records of the Federal Convention of 1787 (Max

Farrand ed., 3d ed. 1966)..............:0......cccccccsesecssessesees 9

Restatement (Third) of Foreign Relations (1987)................ 19

Rex A. Collings, Jr., Habeas Corpus for Convicts —

Constitutional Right or Legislative Grace?,

OT 9

Joshua Denbeaux & Mark Denbeaux, No-Hearing Hearings:

CSRT. The Modern Habeas. Corpus? (2006)........... 17

William F. Duker, A Constitutional History of Habeas

CIOS CIID erecerevesevicrecasstaininssiebinitonnaidhisiiaaadaia 7,8

Mary Ann Glendon, A World Made New:

Eleanor Roosevelt and the Universal

Declaration of Human Rights (2001)..........0.:c00008+ 18

Frederick Pollock & Frederic W. Maitland, | The

History of English Law (2d ed. 1923) .......20ccccc00cc0000 7

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

Jeremy Waldron, Torture and Positive Law, 105 Colum.

Si CED GID cwrerevnscesesncnesesneevesenemesesersscreouene 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, 2006)........... 21

U.S. Department of State, Country Report on

Human Rights Practices 2006 in Burma,

liaise caeaantindtrennipintonnnamesnesscees 19

U.S. Department of State, Country Report on

Human Rights Practices 2006 in Egypt,

SE. Seana 19

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) .................. 16

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, 8. 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)...............0000+++ 8

vl

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 specia! 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 brief 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 has participated in the adoption or

endorsement of the positions in this brief. This brief was not

circulated to any member of the Judicial Division Council prior to

filing.

See ABA Mission and Association Goals, available at

http://www.abanet.org/about goals. htm] (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 rights 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, *;»e 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

http://www.abanet.org/rol/about.shtml (describing the activities of

the ABA’s Rule of Law Initiative) (last visited Aug. 20, 2007).

* Available at http://www.abanet.org/poladv/letters/107th/

militarytrib8c.pdf (last visited Aug. 20, 2007). The House of

Delegates is the ABA’s policymaking body, comprising more than

500 delegates and representing various entities within the ABA, as

well as the legal profession as a whole. Reports that 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 v. 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,

and 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 _ hitp://www.abanet.org/leadership/ -

delegates. him (last visited Aug. 20, 2007).

Available at hitp://www.abanet.org/leadership/recommendations03/

109 pdf (last visited Aug. 20, 2007).

Available at http://www.abanet.org/irr/hamdibrieffeb04.pdf (last

visited Aug. 20, 2007).

Available at http://www abanet.org/irr/padillabrefjuly03.pdf (last

visited Aug. 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 Guarmtanamo 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.

* Available at http://www.abanet.org/poladv.letters/antiterror/

060927letter senmilcom.pdf (last visited Aug. 20, 2007).

4

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 rights 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, dat:ng 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

Available at hitp://www.abanet.org/poladv/letters/antiterror/

O51! l4letter_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.

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 nghts 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 1, 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.” Rasul 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 1s 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:

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, “[p]erhaps 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 19 (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 Writ 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

fundamenta! 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).

il. 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 mghts 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’ mght 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).

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 .. . m order to properly litigate the habeas petitions . . .

1]

> -o9

=

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 turn on geographical niceties

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) (“[]]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).

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 U.S. 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, 1 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 . . .

{ajcting 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

99

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 Rasu/, 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:

[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 Rasu/, stated

that for purposes of determining application of the writ,

[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), quoting Eisentrager,

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 all 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 III; 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/Aug2006/

d20060809CSR TProcedures.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 Community.

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 Denbeaux, No-Hearing Hearings:

CSRT: The Modern Habeas Corpus? 2-3 (2006), available at

http://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

http://www.abanet.org/rol/about.shtml (last visited Aug. 20, 2007).

'" See Judicial Reform Programs, available at http://www.abanet.org/

rol/programs/judicial-reform.html and Legal Profession Reform

Programs, available at http://www.abanet.org/rol/programs/legal-

17

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” ~chts 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 on 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 (IID, 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).

‘9 ICCPR art. 9, § 4.

Organization of American States, American Convention on Human

Rights, art. 7, Nov. 22, 1969, entered into force July 18, 1978,

0.A.S.T.S. No. 36, 1144 U.N.T.S. 123, (signed by the United States

June |, 1977); Organization of American States, American

Declaration of the Rights and Duties of Man, art. XXV (1948) 9th

Int'l Conference of American States, O.A.S. 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 (Citizenship 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 http://scc.lexum.umontreal.ca/en/2007/2007sec9/2007

scc9. html (last visited Aug. 20, 2007).

19

prompt review to ensure that their detention complies with

the law.” /d. 4 90 (citing, inter alia, Rasul v. Bush, 542 US.

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

“{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. 4] 26, 27; see also ¥ 32.

Throughout the word, 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 societies. 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, 417, U.N. Doe. E/CN.4/2006/120 (Feb. 27, 2006)

(internal citations omitted).

21

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 model 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

”)

American Bar Association: Lord Peter Goldsmith, Attorney General

United Kingdom Addresses House of Delegates (speech delivered

Feb. 12, 2007), available ut http://www.abavideonews.org/ABA404/

av.php#rss (last visited Aug. 20, 2007).

22

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 Positive 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

i re a al

es Pe ee