Habeas Petitions and Habeas Counsel

Since the first habeas corpus petition for detainees was filed on February 19, 2002, CCR has helped coordinate a movement of over 500 pro bono attorneys who have filed habeas petitions for more than 300 detainees challenging their unlawful detention at Bay. While these cases have presented a major challenge to the Bush administration’s policies in the “war on terror,” not one detainee has had his petition heard on the merits in a U.S. court. Currently, virtually all of the cases are stayed pending the outcome of the consolidated cases Boumediene v. Bush and Al Odah v. United States, which will be argued in the Supreme Court in December 2007.

Habeas Corpus, or “The Great Writ,” is one of the most fundamental protections of individual liberty guaranteed by the U.S. Constitution, and it has its origins in common law dating back to the time of the Magna Carta of 1215. The writ of habeas corpus protects individuals from arbitrary detention by the Executive and gives a prisoner the right to bring his or her case before a judge. The judge must determine if the detention has a factual and legal basis, and if it does not, the prisoner must be released. The Constitution states that the writ of habeas corpus may only be suspended in cases of rebellion or invasion.

Although the government argued that detainees did not have the right to challenge their detention in U.S. court, the Supreme Court ruled that the detainees did have a right to habeas corpus in its June 2004 decision in Rasul v. Bush. Following this victory, CCR coordinated the filing of hundreds of habeas petitions for detainees in the D.C. District Court, and on August 30, 2004, CCR’s Gitanjali Gutierrez became the first civilian lawyer allowed to visit . However, the government took several steps to circumvent the Rasul decision. The Pentagon set up Combatant Status Review Tribunals (CSRTs), a deeply flawed proceeding that permits the use of secret evidence and evidence obtained under torture to designate detainees as “enemy combatants.” Then Congress passed the Detainee Treatment Act of 2005 (DTA), which purports to strip the federal courts of jurisdiction over claims by “enemy combatants” held in Bay. In 2006, shortly after another Supreme Court victory for detainees in Hamdan v. Rumsfeld, which held in part that the DTA did not strip the federal courts of jurisdiction over pending habeas cases, Congress passed the Military Commissions Act of 2006 (MCA). The MCA attempts to erode habeas corpus even further by proclaiming that all non-citizens designated or awaiting designation as enemy combatants, including legal immigrants detained in the U.S., do not have a legal basis to challenge any aspect of their detention, treatment or transfer, through habeas petitions or other legal vehicles. The MCA’s jurisdiction-stripping provision purports to apply to both pending and future cases.

The Boumediene and Al Odah cases are the first to challenge the constitutionality of the DTA and the MCA, with detainees’ counsel seeking to firmly establish the detainees’ right to habeas corpus. Most of the district court judges overseeing pending habeas cases have ruled that the habeas petitions cannot move forward until the matter is resolved. When the Supreme Court hears these cases in December 2007, it will be the third time the Court considers a case concerning the rights of detainees.