Release Date:  December 4, 2007
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in Boumediene v. Bush and Al Odah v. United States

In one of the most important cases before the United States Supreme Court this year, alleged enemy combatants captured abroad and held as prisoners of war at Guantanamo Bay will argue tomorrow that they have a constitutional right to file federal lawsuits attacking their detention. In the consolidated cases of Boumediene v. Bush and Al Odah v. United States the Court will determine if the Constitution provides the right of habeas corpus to foreign enemies captured in other countries and held prisoner by the United States as part of the war on terrorism.

The Criminal Justice Legal Foundation has submitted argument in these cases to encourage a decision to reject the enemy combatants’ claims. “The petitioners in this case were not entitled to the right of habeas corpus prior to their capture by the military, and they did not acquire that right when they became prisoners of war,” said Foundation Legal Director Kent Scheidegger.

The writ of habeas corpus was a feature of English common law incorporated into American law by the founders. It was created to provide a means for a person arrested and held in England, and later America, to demand a hearing before a judge for an explanation of the charges against him.

In 2005, Congress enacted the Detainee Treatment Act, which authorized the military to determine the status of enemy fighters and suspected terrorists captured and detained during antiterrorist operations, primarily in the Middle East. A provision of that act prohibited U. S. courts from reviewing a foreign detainee’s claims on habeas corpus while providing other means for review. In 2006, the Supreme Court handed down a 5-3 decision in the case of Hamdan v. Rumsfeld, announcing that the Act failed to prohibit habeas corpus review of cases that were filed prior to its adoption. Later that year, Congress adopted the Military Commissions Act which amended the Detainee Treatment Act to unambiguously deny the courts jurisdiction to review any habeas corpus petition filed after September 11, 2001, by any alien determined by the government to be an enemy combatant. The act does provide for limited judicial review after the military’s determination.

In February 2007, the Federal Court of Appeals for the District of Columbia ruled that the Military Commissions Act removes “jurisdiction over detainee cases,” including those filed prior to its adoption. The claim that Congress did not repeal this jurisdiction was called “nonsense,” by the Court of Appeals.

Last summer, the Supreme Court announced that it would review that ruling. In addition to the lawyers representing the two principal groups of enemy combatants, at least 24 amicus curiae (friend of the court) briefs on their behalf have been introduced from groups and individuals, including Amnesty International, the American Civil Liberties Union, the Cato Institute, the United Nations High Commissioner for Human Rights, the American Bar Association, the National Institute of Military Justice, Senator Arlen Specter, and groups calling themselves Legal Historians and Parliamentarians from the United Kingdom, Europe and Canada.

The Criminal Justice Legal Foundation has joined these cases to support the United States with an amicus curiae brief addressing the fundamental claim made by the terrorists and their supporters that Congress does not have the authority to deny the courts jurisdiction to review and decide such suits.

Article I of the Constitution specifies the powers given to Congress. A clause of Section 9, identified as the Suspension Clause, says, “The privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it.” This is the only mention of habeas corpus in the document. Because this clause is understood to guarantee the writ as it existed at common law, the history of habeas corpus as it was applied in English common law must be examined to determine if it was a right afforded to prisoners of war.

The CJLF brief examines this history over the 17th and 18th centuries up to the time when the Constitution was written. It reveals that the writ of habeas corpus was part of the relationship between the King and his subjects. Subjects, for this purpose, were defined as born or naturalized British citizens and also foreigners present in the kingdom as residents or visitors, even if they were citizens of countries at war with England, but not personally hostile to the Crown. No reported cases prior to or near the time of the drafting of the Constitution support the proposition that military prisoners with no prior connection to the kingdom were entitled to habeas corpus, and several cases refute it.

“The Constitution gives Congress the authority to limit the jurisdiction of the courts,” said Scheidegger. “This authority has been exercised and upheld several times. There is no basis for the Supreme Court to overrule a joint decision by the Congress and the President on a question of foreign and military policy,” he added.