Supreme Court rules that Guantanamo detainees have right to habeas corpus

In a remarkable decision issued today, the U.S. Supreme Court ruled that Guantanamo Bay alien detainees have a right to challenge the lawfulness of their detentions in U.S. federal courts. The 5-4 decision was issued in the combined cases of Al Odah v. United States and Boumediene v. Bush.

In its decision, the Court ruled that Congress had not validly suspended habeas corpus. Under Article I, Section 9, Clause 2 of the Constitution, the writ of habeas corpus may only be suspended in times of rebellion or invasion -- neither of which have occurred.

Just as significantly, the Court also ruled that the alternative to habeas corpus that Congress set up in 2005 under the Detainee Treatment Act, which only permits detainees to challenge the lawfulness of their detentions under very restrictive and limited terms, is an inadequate and ineffective alternative to habeas. The DTA, according to the Court, did not provide sufficient legal protections to detainees who sought to challenge their detentions under the DTA scheme.

Detainees had challenged the sufficiency of the DTA process, claiming that, unlike the legal protections afforded under habeas review, the DTA did not grant detainees the right to counsel, the right to meaningfully challenge evidence presented against them, the right to present exculpatory evidence, or the right to secure their release if they were found to not be enemy combatants. The DTA would have also allowed the government to present evidence obtained through coercion or torture.

This means that detainees are not required to abide by the terms set out in the Detainee Treatment Act, but rather, may challenge their detentions in U.S. federal courts via habeas petitions.

A copy of the Court's decision is available here.

Sheikh Muhammad’s Confessions

The “confessions” of Sheikh Muhammad presented before the Combatant Status Review Tribunal at Guantanamo Bay provide valuable insights into possible terrorist threats and thinking, and deserve to be taken seriously on that basis. But there are aspects of the confessions that are very troubling for other reasons that counsel taking them with caution as well.

Statements that result from torture (admitted waterboarding in this case) are never reliable, and should never be accepted as a basis for judgment in any type of judicial proceeding, even the special CSRT procedure established at GITMO to assess the status of suspected terrorists. These due process problems are compounded by the fact that Sheikh Muhammad, along with an undetermined number of other suspected terrorists, was held for many months in a “secret prison” without charges being filed against him, and subject to extreme forms of isolation and interrogation. Torture and arbitrary, indefinite detention would make any statement or confession unusable in a regular US court proceeding. The fact that these practices are being permitted in the context of the CSRT determinations places a major cloud on how the detainees and other suspected terrorists more generally. In the name of fighting the “war against terrorism,” and in order to deal with suspected terrorists expediently, we are allowing ourselves to commit torture and to eliminate some of the most important judicial protections that we associate with the “rule of law.”

The elimination of habeas corpus remedies in the REAL ID Act (for refugees) and in the Military Commissions Act (for terrorist detainees) is another victim of this process, and another indicator of how far our government seems willing to go to restrict basic rights and protections to stop terrorists.

It is important for us to look at these problems with how we are dealing with the terrorist threats, not just at the subjects of the “confessions” themselves. The Department of State has just put out its annual Country Reports on Human Rights assessing compliance by foreign governments, and placing great stress on how these governments observe the basic principles of democracy and the rule of law. How would our own government fare if subjected to the same analysis? The process surrounding how Sheikh Muhammad’s confessions were obtained, including the use of torture and long-term secret imprisonment, and the CSRT process that substitutes ex parte judgments by the military for basic due process rights, suggests this judgment would not be a very positive one.

MS

Human Rights USA "At the Forefront of the Law" in Abu Ali Rendition to Torture Challenge (3/3/05)

One of the hallmarks of the work that Human Rights USA does is taking on cases that other groups have dismissed as "unwinnable" or not worth the effort. Our representation of Ahmed Abu Ali, a client who sought to challenge the U.S. government's rendition to torture program, was one such case.

Abu's sister called our organization after every other group had turned her down, telling her that she didn't stand a chance in challenging the U.S. government's involvement in the rendition of a U.S. citizen to a foreign country, where he was being held by foreign officials.

"Within a few minutes, my gut was telling me this was a rendition to torture case," Sheikholeslami said, referring to a U.S. practice of transferring terrorism suspects to foreign countries known for torturing prisoners in interrogations. "It was extremely important -- it involved a U.S. citizen held without charges -- and it was an extremely important opportunity for our organization, as well."

"People were telling us it was a waste of time," Sklar said of the assessments about the Abu Ali suit, which his group filed for the family in July 2004 against then-Attorney General John D. Ashcroft, the Justice Department and the FBI. The one thing that makes the human rights organization different, he said, "is that we are looking for creative solutions to important problems. Little groups like ours are flexible and can do that."

Human Rights USA, with the help of its interns, put together a 27-page legal brief arguing that the U.S. courts have jurisdiction to review a person's detention in a foreign country, when the United States played a role in that detention. The D.C. District Court agreed, marking the first time that courts have ever directly addressed this issue. The court's decision opened up the possibility for federal courts to look into the U.S. government's involvement in the "extraordinary rendition" program, where individuals are secreted to foreign countries and are indefinitely detained, held incommunicado, and are often subjected to abuse and torture.

The government has made every attempt to prevent the courts from reviewing its actions in the war on terror, but the court's decision in Abu Ali represents one instance where the courts haven't been afraid to pull the brakes on a program that violated U.S. and international law. Human Rights USA continues to challenge the U.S. government's rendition to torture program. Please go here more about our work on Human Rights & Anti-Terrorism.

To read the full article on Human Rights USA's groundbreaking work, please see the following article:

• Washington Post, From Cramped Office, Students Accomplish Major Change In Law; Rights Group Plays Key Role In Terrorism Case, March 3, 2005

Court Agrees to Review U.S. Government's Role in Rendition of Abu Ali to Saudi Arabia

In a sweeping decision yesterday, the District Court for the District of Columbia held, in our case Abu Ali v. Ashcroft, that U.S. federal courts have jurisdiction to inquire into the level of involvement that the U.S. government had in the arrest, detention, and interrogation of a U.S. citizen currently being detained in a Saudi prison.

The U.S. government had tried to argue to the court that federal courts lack jurisdiction to compel the government to reveal information about the detention of an individual being held by a foreign government, "even where the United States allegedly has been involved in the prisoner's incarceration in the first place."

The court squarely rejected this argument, stating that ''[t]he full contours of this position would permit the United States, at its discretion and without judicial review, to arrest a citizen of the United States and transfer her to the custody of allies overseas in order to avoid constitutional scrutiny." If the court were to accept that position, that would allow the government ''to deliver American citizens to foreign governments to obtain information through the use of torture," a practice which has been gaining increasing attention as details about the government's "extraordinary rendition" program come to light.

Relying in part on the Supreme Court's recent decision in Rasul v. Bush, in which that Court held that the government could not indefinitely detain "enemy combatants" at Guantanamo Bay without affording them the right to challenge their detentions before a neutral tribunal, the D.C. District Court said that the U.S. government is obliged to respond to our specific allegations of complicity in arranging Abu Ali's detention and mistreatment, giving Ali the opportunity to challenge his detention.

The significance of the court's ruling is that courts have now been held to be able to decide whether the detention of U.S. citizens by foreign countries are justified, so long as there is some evidence that the U.S. government was involved in the detention of U.S. citizens. The decision, furthermore, presents a very strong rebuke of the U.S. government's attempts to prevent courts from reviewing its actions in the war on terror, something it has been trying to do from the beginning.

For additional news on our Abu Ali case, please see the following news sources:

• Associated Press, Saudi Detainee’s Family Urges U.S. Action, December 17, 2004
• Washington Post, Judge To Review U.S. Role In Saudi Jailing of Va. Man, December 17, 2004
• New York Times, U.S. Court Asserts Authority Over American in Saudi Jail , December 17, 2004
  
• Washington Post, Saudi Subcontractors, December 20, 2004

HRUSA Files Lawsuit to Challenge U.S. Government's Rendition to Torture Program

On June 11, 2003, Ahmed Abu Ali, a U.S. citizen of Falls Church, Va., was taking final exams at the university he attended in Medina, Saudi Arabia, when he was seized by Saudi officials and brought to a Saudi prison, where Abu Ali was held incommunicado for the first few months of detention, and only allowed to call his parents every few weeks thereafter. At no time during these first few months was he given a chance to legally contest his detention.

A few months into his indefinite detention, Abu Ali was interrogated by FBI officials, and was and subsequently subjected to solitary confinement for a period of three months, during which time he lost 30 pounds, and was subjected to mistreatment and abuse.

Abu Ali's parents came to us for help after other groups had turned them away, calling Abu Ali's case "unwinnable." Abu's family finally came to Human Rights USA, and we readily agreed to take his case. We have now filed suit against several U.S. government officials, challenging the government's extraordinary rendition program and its attempts to deny due process to U.S. citizens, as it has done with terror suspects held at Guantanamo Bay.

Last month, the Supreme Court ruled that Guantanamo Bay detainees could not be held indefinitely without an opportunity to challenge their detentions before a neutral tribunal. There is no direct legal precedent for federal courts to order American authorities to release a U.S. citizen held by foreign officials.

For additional news items about Abu Ali's case, please see the following:

• St. Louis Post-Dispatch, Detainee’s Family Hopes Suit Forces U.S. Action , July 28, 2004
• Washington Post, Va. Couple File Lawsuit to Free Their Son Held in Saudi Arabia, July 28, 2004
• New York Times, Parents of American Held by Sauds Sue , July 29, 2004
  
• NPR, Suit Claims American Held by Saudis at U.S. Behest, July 29, 2004
• Washington Post, Saudis Plan Terror Case Against Va. Man, Family Says, July 30, 2004
• St. Louis Post-Dispatch, Detainee’s Mother Says She Was Told Saudis May Prosecute Son Soon , July 30, 2004