Guantánamo Attorneys to Justices: Restore the Constitution

NELL MCGARITY 202 292 6973

WASHINGTON, D.C. – In a landmark human rights case with significant implications for the separation of powers, the Supreme Court today heard a challenge brought by the Center for Constitutional Rights (CCR) and co-counsel to the legality of Guantánamo Bay detentions.

This case will decide whether federal courts have any say in checking the power of the Executive Branch to hold men at Guantanamo indefinitely and outside of the law.

All have been confined at Guantanamo for almost 6 years yet not one has had meaningful notice of the factual grounds of their detention,” said former Solicitor General Seth Waxman in his oral arguments.

Thirty-six of the 37 detainees involved in this suit have been in detention for more than five years without ever having faced formal charges or having a fair hearing before a civilian court.

Attorneys for the detainees—supported by dozens of former federal officials and legal experts—are asking the court to restore the right to habeas corpus—the basic right to challenge the legality of their detention—to the men and boys held at the offshore prison.

We have been back and forth in the courts as the government has tried one maneuver after another to avoid the Supreme Court’s past rulings – that the detainees are entitled to challenge their detention in U.S. courts,” said Vincent Warren, executive director of CCR, which has organized legal representation for Guantánamo detainees since the prison opened in January 2002. “We hope the Supreme Court will end this travesty once and for all and provide full, fair and prompt hearings, which are the very foundation of a free society.

The Court ruled in favor of the detainees in Rasul v. Bush (2004) and in Hamdan v. Rumsfeld (2006). Following the Hamdan decision, Congress passed the Military Commissions Act, which has kept Guantanamo prisoners in legal limbo.

The precedent set in past Guantanamo Supreme Court cases—that every person detained has the right to a fair hearing, including those jailed at the detention center for almost six years—is a necessity for any country calling itself a nation under law,” CCR President Michael Ratner said.

The Court received more than two dozen amicus curiae (“friend of the Court”) briefs on behalf of the men and boys held at Guantánamo. Former military officials and diplomats, former Congressmen of both parties and a bipartisan group of non-government organizations showed their support of granting habeas rights.

More information:
CCR lawyers were the first civilian attorneys to visit clients at Guantánamo, in 2004, and have been petitioning on behalf of the men and boys there since the detention center opened six years ago. After winning the Rasul case in 2004, CCR coordinated the largest ever coalition of pro bono lawyers to defend the prisoners there, ensuring that nearly all have been represented.

CCR’s legal team comprises leading experts on human rights and related legal issues. They have spoken at various prestigious law schools, been interviewed on numerous national and local radio programs and have recently penned an op-ed that ran in the Washington Post on being the first attorneys ever to visit a former CIA “ghost” detainee.

CCR’s “Beyond Guantánamo” campaign is working to bring national awareness to the issues surrounding this landmark case. Notably, television ads are running this week on CNN and MSNBC, as well as a print ad in the Wall Street Journal. CCR’s ad was rejected, though, by the Fox News Channel. The “Beyond Guantánamo” campaign has also helped tens of thousands of people to send the President an early holiday present—a copy of the Constitution.

Important note:
CCR Executive Director Vincent Warren, CCR President Michael Ratner and leading CCR staff attorneys are available for both live and taped interviews on Dec. 5 and 6.

Vincent Warren became executive director of the Center for Constitutional Rights 2006. He spent seven years as national senior staff attorney with the American Civil Liberties Union, where he led national constitutional and impact litigation to advance civil rights and civil liberties and coordinated the legal efforts to respond to the devastation of Hurricane Katrina.

Michael Ratner is president of the Center for Constitutional Rights and served as co-counsel in Rasul v. Bush. Ratner is a world-renowned legal advocate who has taught at both the Columbia and Yale law schools. For more than three decades, he has represented individuals who have suffered injustice the world over—from East Timor and the South Bronx to Haiti and Guatemala. Last year, the National Law Journal named Ratner one of the 100 most influential lawyers in the United States and is the winner of this year’s Nation/Puffin Award. Ratner is the author of several books, including Guantánamo: What the World Should Know and the forthcoming The Trial of Donald Rumsfeld.

Gitanjali Gutierrez has been working on legal challenges to Guantanamo since 2003 and was a member of the legal team that argued the first Guantanamo case, Rasul v. Bush, before the Supreme Court in 2004. Following CCR's victory in Rasul, Gita was the first civilian attorney to meet with clients at the base and currently travels regularly to the detention center for client meetings. Last month, she became the first attorney to meet with a former CIA “ghost detainee.”

Shayana Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at CCR. In addition to supervising the Guantanamo litigation, he also works on CCR’s major case on the illegal NSA domestic spying program, CCR v. Bush, as well as the Center’s Patriot Act case, and has testified before Congress on the material witness statute.

Wells Dixon works on the Guantánamo Global Justice Initiative at CCR. His clients include Uighur prisoners cleared for release in 2003, a U. N.-mandate refugee from Somalia and former Baltimore-area resident Majid Khan, who was imprisoned in secret CIA “black sites” for more than three years before he was transferred to Guantanamo in Sept. 2006.


What the Supreme Court will consider in Al Odah v. United States:

  1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager, 339 U.S. 763 (1950), to dismiss these petitions and to hold that Petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that these Petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
  2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that Petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
  3. Are Petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
  4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over Petitioners’ pending habeas cases, thereby creating serious constitutional issues?

What the Supreme Court will consider in Boumediene v. Bush:

  1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
  2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Analysis on the Center for Constitutional Rights’ Argument

Petitioners in Al Odah argue that the precedent set by the Supreme Court 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 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.

Two military officers who sat on Combatant Status Review Tribunals have stated in affidavits that the panels relied on shoddy evidence in order to reach preordained results -- no substitute for habeas corpus at law.

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 5, 2007