Final Guantánamo Supreme Court Brief Filed

CONTACT: Jen Nessel, [email protected]

November 14, 2007, New York, NY – Last night, Center for Constitutional Rights (CCR) attorneys and co-counsel submitted the final brief to the Supreme Court in the case that will determine whether detainees at Guantánamo possess the fundamental constitutional rights to due process and habeas corpus.

The reply to the government’s brief addresses whether the limited appeal procedure set up by Congress under the Detainee Treatment Act (DTA) in 2005 is an adequate substitute for the right of habeas corpus (the right to a fair hearing before an impartial court to challenge your detention and know the evidence against you), and whether the detainees should be made to exhaust every new process set forth by the government before the Court can rule on the fundamental question before them. It also addresses one of the government’s key claims: that the clause of the constitution prohibiting suspensions of habeas corpus would not have protected the rights of detainees at Guantanamo at the time the constitution was written. The brief points out that the authors of the Constitution also wrote the first habeas statute in 1789 and believed that statute protected the rights guaranteed by the suspension clause. Since that 1789 statute was essentially the same as the statute the Supreme Court said protected the rights of Guantánamo detainees in 2004, the brief concludes that the government’s argument is inconsistent with the Court’s 2004 decision, despite the fact that Congress changed the habeas statute after 2004 in the Military Commissions Act of 2006.

Highlights from the brief:
  • “[T]he Habeas Corpus Act of 1679 was enacted in England in response to abuses by the Earl of Clarendon who was impeached for sending persons ‘to be imprisoned . . . in remote islands . . . thereby to prevent them from the benefit of the law.’ It is extraordinary that the Government cites this statute as justification for doing exactly the same thing as the Earl of Clarendon – sending persons to ‘remote islands . . . thereby to prevent them from the benefit of the law.’ Its attempt to do so is contrary to the purpose of the writ and to the rule of law it was designed to protect.”
  • “Under the DTA, the Court of Appeals is not allowed to take new evidence, it has no way of knowing what portions of the Government’s evidence were obtained through torture and coercion, and the detainees continue to be deprived of the opportunity to confront and rebut the key accusations against them and to introduce evidence establishing their innocence…. Those inadequacies cannot be fixed by any amount of DTA review. They are inherent in the DTA review process itself.”
  • “Now, nearly six years into petitioners’ incarceration at Guantanamo – what the Government has the audacity to refer to as ‘this preliminary stage’ – it is both erroneous and offensive for the Government to contend that it is premature for this Court to rule on petitioners’ claim that Congress unconstitutionally deprived them of their right to habeas.”

“This case is about the government’s attempt to stand above the law. The men we represent have been held unlawfully without any substantive rights in abusive conditions while the courts and Congress have debated their fate for the last six years,” said CCR Senior Attorney Shayana Kadidal. “The government has tried one maneuver after another to avoid the Supreme Court’s 2004 ruling that the detainees are entitled to challenge their detention in U.S. courts. We hope the Court will see through any new last minute attempts by the government to further muddy the waters and will order full, fair and prompt hearings when they rule on our case– this is the very foundation of a free society.”

The brief was filed on behalf of men from the first habeas corpus petitions submitted immediately after the landmark 2004 Supreme Court decision in CCR’s case Rasul v. Bush. Al Odah v. United States, as the case is now called, is being heard together with a related case, Boumediene v. Bush; both challenge the Military Commissions Act (MCA), which attempted to strip away the statutory right to habeas corpus the Supreme Court recognized in 2004 and replace it with a far more limited review process set up by the Detainee Treatment Act (DTA).

Nearly 20 amicus briefs have been filed in support of the cases from a broad range of sources that include former federal judges, former JAG officers, legal historians, the bi-partisan Constitution Project, and 383 UK and European parliamentarians. All the briefs are available on the CCR's website.

Last April, the Supreme Court initially declined to hear the cases, but, for the first time in 60 years, reversed itself and announced on June 29, its final day in session, that it would hear Al Odah/Boumediene during the Court’s 2007-2008 Term. Arguments are scheduled for December 5, 2007.


Al Odah consists of the first 11 habeas corpus petitions filed after the landmark Supreme Court decision in Rasul v. Bush; Boumediene is on behalf of six humanitarian workers seized by the U.S. military in Bosnia after the Bosnian courts ordered local authorities to release them. In Al Odah, D.C. District Court Judge Joyce Hens Green stated that detainees possess “the fundamental right to due process of law under the Fifth Amendment.” Reaching an entirely different conclusion, Judge Richard Leon dismissed the Boumediene appeals, ruling that the detainees possess no constitutional rights – making the right of access to the courts recognized in Rasul an empty shell. Both cases were appealed, and the two cases were consolidated for oral arguments before the D.C. Circuit Court of Appeals.

While the cases were pending, Congress passed the DTA in 2005 and the Military Commissions Act in 2006. The MCA attempts to strip detainees of their statutory right to challenge their detention in the courts.

In April 2007, when the Supreme Court initially refused to hear Al Odah/Boumediene, three justices had dissented and two, Justices Stevens and Kennedy, issued a statement suggesting that the detainees should exhaust the process set up by the DTA before they would consider ruling on constitutional questions. However, the two Justices made a point of noting that the Court could revisit the case if it turned out that the DTA process provided an “inadequate remed[y],” if the “Government unreasonably delayed proceedings” under the DTA, or if the “government were to take additional steps to prejudice the position of detainees in seeking review in this Court.”

Attorneys subsequently filed rehearing petitions outlining the ways in which the DTA and CSRT processes were not working and asking the court to reconsider review. According to CCR attorneys, the CSRT’s are a sham process. The government controls what evidence and witnesses are permitted, evidence obtained by torture is permissible, and the detainees have no lawyer representing them and no guarantee of due process. Some detainees were sent through the CSRT process as many as three times until they were found guilty – the process is designed, say attorneys, to get the government the results it wants.

Under the DTA, the Court of Appeals is only allowed to determine whether the military adhered to its own rules in the CSRT process. The government claims that the DTA does not allow any new evidence or additional facts to be presented to the court by the detainee, and that if the court rules in favor of a detainee, the detainee should be sent back for another CSRT, not released.

For more information, see the Al Odah v. United State case page.

The Center for Constitutional Rights represents many of the detainees at Guantánamo and coordinates the work of more than 500 pro bono attorneys working on the detainee cases.

Co-counsel in this case include: John J. Gibbons and Lawrence S. Lustberg of Gibbons P.C.; Thomas B. Wilner, Neil H. Koslowe, and Amanda E. Shafer of Shearman & Sterling LLP; George Brent Mickum IV of Spriggs & Hollingsworth; Mark S. Sullivan, Christopher G. Karagheuzoff, and Joshua Colangelo-Bryan of Dorsey & Whitney LLP; Baher Azmy of the Seton Hall Law School Center for Social Justice; Pamela Rogers Chepiga, Karen Lee, Douglas Cox, Sarah Havens, Julie Withers, and Chintan Panchal of Allen & Overy LLP; Scott Sullivan, Derek Jinks, and Kristine Huskey of the University of Texas School of Law National Security and Human Rights Program and Clinic; Joseph Margulies at the Macarthur Justice Center at Northwestern University Law School; Douglas J. Behr at Keller And Heckman LLP; Erwin Chemerinsky of Duke Law School; and Clive Stafford Smith and Zachary Katznelson from the UK-based human rights organization Reprieve.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at


Last modified 

December 3, 2009