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New York and Washington, DC, May 1, 2013—The Center for Justice and International Law (CEJIL)…
September 6, 2012, New York – In response to today’s ruling by the United States…
Al Odah v. United States:
The Center for Constitutional Rights Argument:
Petitioners in Al Odah argue that the precedent set by the Supreme Court itself in Rasul v. Bush in 2004 precludes the D.C. Circuit Court of Appeals’ conclusion that Guantanamo detainees have no common law right to habeas corpus protected by the Suspension Clause. The Suspension Clause, Article 1, Section 9, Clause 2 of the United States Constitution, provides that habeas corpus, such as it existed at common law, may be suspended by Congress only in cases of “rebellion or invasion.”
Furthermore, petitioners challenge the D.C. Circuit’s reliance on Johnson v. Eisentrager to dismiss the detainee habeas corpus petitions, given that in Rasul, the U.S. Supreme Court ruled that the petitioners are differently situated to those in Eisentrager, and are confined within an area in the exclusive territorial jurisdiction of the United States. Petitioners argue further that they are entitled to the writ of habeas corpus at common law, such as it existed historically, outside the definitions of the federal habeas statute, and thus are protected from any unlawful suspension of habeas by the Suspension Clause.
In addition, petitioners argue that they are entitled to Fifth Amendment rights under the U.S. Constitution to not be deprived of liberty without due process of law, and, in addition, to the protections of the Geneva Conventions. The petitioners have been detained without a judicial hearing for well over five years, within an area under the exclusive control and jurisdiction of the United States. Petitioners further argue that any substitute procedures – and the review of those substitute procedures by the D.C. Circuit Court – that have been created are so limited and narrowly defined, as well as fraught with error - are no substitute for habeas corpus and due process.
Thus, Petitioners argue, the Military Commissions Act of 2006, cannot have validly and Constitutionally stripped petitioners of their right to the writ of habeas corpus at common law.
In response, the Executive argues that “as aliens held outside the sovereign territory of the United States, [the detainees] enjoy no rights under the Suspension Clause. Second, even if they could invoke the Suspension Clause, it would not entitle them to relief because they seek an expansion of the writ well beyond its historic scope. And third, the [Detainee Treatment Act] in any event provides an adequate alternative to any habeas rights [these detainees] may have.” In reality, Petitioners have been held for nearly six years at a U.S. Naval Base, in a territory under the exclusive control and jurisdiction of the United States, without any judicial process or hearing, despite the clear mandate of the Rasul court. They are not citizens of enemy nations, but citizens of our closest allies who maintain that they are innocent of any wrongdoing. Furthermore, they have been denied any meaningful process for a period that now stretches to six years – and threatens to continue indefinitely. Affidavits by military participants in the Detainee Treatment Act process (the CSRT process) reveal its shoddy, error-laden character – no substitute for habeas corpus at law.