On November 1, 2006, The Center for Constitutional Rights (CCR) joined attorneys in filing a brief in Al Odah v. United States of America, together with Boumediene v. Bush, the two cases representing men held at Guantánamo Bay that have reached the U.S. Court of Appeals for the D.C. Circuit. The briefs were the first written arguments to challenge the Military Commissions Act (MCA) in court and argue that either the retroactive suspension of the detainees' right of habeas corpus does not apply to pending cases, or that it is flatly unconstitutional. CCR represents Australian citizen David Hicks, one of the petitioners in Al Odah, as well as hundreds of other detainees at the island prison and coordinates their representation by hundreds of pro bono attorneys.
The brief states: "The Court should promptly affirm [the Lower Court's] denial of the Government's motion to dismiss these cases and, at long last, allow the district court to decide 'the merits of the petitioners' claims' as mandated by the Supreme Court" in CCR's landmark victory Rasul v. Bush. The brief goes on to argue that the Suspension Clause of the Constitution--which states that "the writ of habeas corpus shall not be suspended, unless... cases of rebellion or invasion… require it"--bars Congress from suspending that right, except under very particular circumstances.
"This is the first opportunity we have had to challenge the constitutionality of the MCA in court," said CCR senior attorney Barbara Olshansky, "and the Constitution is quite explicit on this point: No rebellion, no invasion, no suspension. It's that simple. We at CCR are confident that the court will find in favor of our clients, and in favor of the Constitution."
The government must now file a response to the brief, which is due by November 13. The written briefs will then be followed by oral arguments, on a date to be determined by the court. Until the court issues its decision, all pending habeas corpus cases will not move forward.
CCR Legal Director Bill Goodman said, "The Supreme Court has repeatedly declared that the hundreds of men detained at Guantánamo Bay have the right to their day in court. President Bush and the Congress have done their best to delay justice for these men; now the courts must insure that justice is not denied."