Tuesday, December 4, 2007

AL ODAH V. UNITED STATES

Synopsis

On June 28, 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantánamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement. Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings.Immediately after the Supreme Court’s decision in Rasul, CCR and cooperating counsel filed 11 new habeas petitions in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United Statesand Boumediene v. Bush, the leading cases determining the significance of the Supreme Court’s decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.

Al Odah v. U.S. Amicus Briefs page

Status

The government’s opposition briefs were filed on October 9, 2007 and the Petitioners will file reply briefs on November 13. Al Odah and Boumediene will be argued before the Supreme Court on December 5th, 2007.

Description

Subsequent to Rasul, intervening events with relevance to the question of the rights of Guantánamo detainees included the establishment of Combatant Status Review Tribunals (CSRTs) in 2004 and the enactment of legislation purportedly stripping classes of non-citizens of their rights to bring certain challenges in federal court – the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA).

On February 20, 2007, a divided panel of judges at the Court of Appeals of the D.C. Circuit relied on the MCA to dismiss the leading habeas petitions, consolidated as Boumediene v. Bush, for lack of jurisdiction. T

The detainees sought review of the Circuit Court decision at the Supreme Court.On April 2, 2007, the Supreme Court denied the petitioners’ writ of certiorari, declining to hear the case at that time.On June 29, 2007, in an unusual action, the Supreme Court reversed this decision and agreed to hear the case in its 2007-2008 term.Issuing unusual explanatory statements accompanying the denial of certiorari, three Justices dissented and Justices Stevens and Kennedy issued a statement in support of the denial suggesting that the detainees should exhaust the remedies available in the CSRT review scheme established by the DTA and MCA.

The Center and co-counsel filed opening briefs on August 24, 2007. Three separate briefs were filed on behalf of the petitioners in Al Odah and Boumediene, and over twenty supporting amicus briefs were filed simultaneously. Amicus briefs demonstrated support from retired military officers, retired federal judges, former U.S. diplomats, a sitting Republican U.S. Senator, Canadian, British and European Parliamentarians, the American Bar Association, the Commonwealth Lawyers Association, law professors and legal historians, the United Nations High Commissioner for Human Rights (UNHCR), and domestic and international non-governmental organizations. The government’s opposition briefs were filed on October 9, 2007 and the Petitioners will file reply briefs on November 13.Al Odah and Boumediene will be argued before the Supreme Court in the coming term, with the argument tentatively scheduled for early December 2007.

Timeline

On February 19, 2002, CCR filed the habeas corpus petition Rasul v. Bush in the United States District Court for the District of Columbia.This case was filed on behalf of two foreign nationals detained at Guantánamo who had been determined to be “enemy combatants” per executive order.

On March 18, 2002, the government moved to dismiss the Rasul habeas petition for lack of njurisdiction.

On May 1, 2002, 12 Kuwaitis at Guantánamo filed the habeas corpus petition Al Odah v. United States in the U.S. District Court for the District of Columbia.

On July 30, 2002, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia issued a ruling in Rasul v. Bush and the accompanying case Al Odah v. United States. Judge Kollar-Kotelly granted the government’s motion to dismiss the habeas corpus petition and dismissed the cases with prejudice for lack of subject matter and as a matter of jurisdiction.

On September 9, 2002, CCR appealed the dismissal of Rasul v. Bush and Al Odah v. United States.

On September 13, 2002, the three habeas corpus petition appeals in Habib v. Bush, Rasul v. Bush, and Al Odah v. United States were consolidated.

On March 11, 2003, the D.C. Circuit Court of Appeals affirmed the dismissal of all three habeas petitions.In the divided 2-1 decision, the court held that the petitioners had no right to due process and that no U.S. court had jurisdiction to hear their claims.

On September 2, 2003, CCR and attorneys for detainee Fawzi al Odah filed a petition for writ of certiorari before the Supreme Court, seeking review of the D.C. Circuit’s decision in Al Odah v. United States.

On November 10, 2003, the Supreme Court granted certiorari in three leading habeas petitions, agreeing to hear the habeas cases and decide “whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba.” In granting certiorari, the Court consolidated the appeals under the name Rasul v. Bush.

On January 14, 2004, CCR filed the opening brief in Rasul v. Bush.

On March 3, 2004, the government filed an opposing brief on the merits in Rasul v. Bush.

On March 9, 2004, Shafiq Rasul and Asif Iqbal, two petitioners in Rasul, were released from Guantánamo.

On April 5, 2004, CCR filed two habeas corpus briefs directly with the Supreme Court as original writs and one with the District Court on behalf of seven more detainees, to prevent the government from attempting to moot the pending case by releasing the remaining petitioners in Rasul v. Bush and Al Odah v. United States.

On April 7, 2004, CCR filed reply briefs for Rasul v. Bush.

On April 20, 2004, Rasul v. Bush was argued before the Supreme Court.

On June 28, 2004, the Supreme Court decided Rasul v. Bush, ruling 6-3 in favor of the detainees. This landmark ruling affirmed the right of non-citizen detainees held at Guantánamo to challenge their detention in U.S. courts. Justice John Stevens wrote for the majority that the right to habeas corpus does not depend on citizenship. The decision reversed the D.C Court of Appeals’ decision in Al Odah v. United States and the petitions were remanded to the lower courts. The Supreme Court’s decision permitted the detainees to bring habeas petitions in U.S. courts to challenge the legality of their detention.

On July 1, 2004, CCR sent a letter to then-Secretary of Defense Donald Rumsfeld, demanding access to CCR’s clients in Guantánamo.

On July 2, 2004, CCR coordinated the filing of the first habeas corpus petitions submitted after the Supreme Court’s landmark decision in Rasul.

On July 7, 2004, in another effort to avoid providing the detainees access to U.S. courts as the Supreme Court had ordered in Rasul, the government authorized the establishment of Combatant Status Review Tribunals (CSRT) at Guantánamo. The CSRTs were administrative tribunals expressly designed to confirm the Executive’s prior enemy combatant status determinations.In these tribunals, military officers reviewed each detainee’s enemy combatant status without the involvement of lawyers for the detainees and with myriad additional procedural flaws. For example, the CSRT procedures permitted evidence obtained under coercion or torture and denied detainees access to classified evidence, which in some cases constituted the majority of the evidence presented to the tribunal.

On July 8, 2004, Boumediene v. Bush was filed as a petition for a writ of habeas corpus.

On July 17, 2004, seventeen formal applications for writs of habeas corpus were filed in Al Odah v. United States. Lakhdar Boumediene and Fawzi al Odah are among those filing habeas petitions in the D.C. District Court.

On July 30, 2004, the government moved to obtain real-time monitoring of oral communication between the attorneys and petitioners in the Guantánamo cases.

On August 16, 2004, after the petitioners objected to the government’s proposed monitoring of attorney-client meetings, a hearing was held in D.C. District Court to address this issue.

On August 17, 2004, Judge Joyce Hens Green was appointed coordinating judge for all the remaining Guantánamo cases.

On October 4, 2004, the government filed a motion to dismiss all of the Guantánamo detainee cases. Additionally, at the request of U.S. District Judge Richard J. Leon, Judge Green transferred two of cases which had previously been assigned to him - Khalid v. Bush and Boumediene v. Bush - back to him.

On October 20, 2004, Judge Kollar-Kotelly issued a memorandum opinion in the decision Al Odah v. United States, upholding the detainees’ right to counsel and attorney-client privacy and denying the government’s request to monitor attorney-petitioner communications.

On November 8, 2004, in response to the government’s October 4, 2004 motion to dismiss, Judge Joyce H. Green issued an amended protective order establishing counsel access procedures in In re Guantánamo Detainee Cases, of which Al Odah v. United States was a part.

On January 19, 2005, D.C. District Court Judge Richard J. Leon granted the government’s motion to dismiss two of the habeas petitions assigned to him. In Khalid v. Bush, he held that the non-citizen detainees at Guantánamo – detained outside the sovereign territory of the United States in the course of the “war” against Al Qaeda and the Taliban – possessed no substantive rights to due process that would allow them to vindicate themselves via habeas corpus petitions. Judge Leon held that they possessed no constitutional rights; that no federal law was relevant and applicable; and that international law was not binding in this instance.

On January 31, 2005, Judge Green issued a contrary ruling in the remaining eleven habeas petitions. In In re Guantánamo Detainee Cases, Judge Green held that the detainees were entitled to constitutional due process rights that were not satisfied by the CSRTs and that some of the detainees held rights under the Third Geneva Convention.

On February 3, 2005, the interlocutory order for appeal by the respondents for In re Guantánamo Detainee Cases was certified by Judge Green, and she granted the government’s motion for a stay of proceedings pending outcome of the appeal of Khalid and In re Guantanamo Detainee Cases, consolidated on appeal as Al Odah v. United States and Boumediene v. Bush.

On March 10, 2005, the Court of Appeals of the D.C. Circuit granted the government’s petition for interlocutory appeal and the detainees’ cross-petition for interlocutory appeal.

On May 27, 2005, the Court of Appeals for the D.C. Circuit consolidated the appeals of In re Guantánamo Detainee Cases with the appeals from Khalid v. Bush, consolidated on appeal as Al Odah v. United States and Boumediene v. Bush. In part because of subsequent briefing ordered in response to intervening legislation affecting the issue of the rights of Guantánamo detainees in U.S. courts, the D.C. Circuit did not issue a final ruling in Boumediene until February 2007.

On December 30, 2005, the Detainee Treatment Act of 2005 (DTA) was enacted into law, purporting to strip U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees and vesting exclusive review of final decisions of CSRTs and military commissions in the D.C. Circuit Court.

In January 2006, the government moved to dismiss the appeals in both Hamdan v. Rumsfeld at the Supreme Court and Al Odah and Boumediene before the Circuit Court, arguing that the DTA should be applied retroactively. In response, both courts ordered supplemental briefing on the DTA’s impact upon their jurisdiction.

On March 22, 2006, the D.C. Circuit heard supplemental argument in Al Odah/Boumediene on the effect of the DTA on the petitioners’ habeas petitions.

On March 28, 2006, the Supreme Court heard supplemental argument in Hamdan v. Rumsfeld on the effect of the DTA on the petitioner’s habeas petition and challenge to his military commission proceeding.

On June 29, 2006, the Supreme Court decided Hamdan v. Rumsfeld, a challenge by a Guantánamo detainee charged under military commissions established by executive order. The Court held that the DTA did not preclude federal jurisdiction of pending habeas actions. It also ruled that the military commissions, as defined under the President’s 2001 executive order, violated military law and the Geneva Conventions.

On October 17, 2006, the Military Commissions Act (MCA) of 2006 was enacted into law. The MCA was created as a direct response to the Supreme Court’s decision in Hamdan v. Rumsfeld and Congress’ prohibition of cruel, inhuman and degrading treatment during interrogations in the McCain Amendment to the DTA. Among other things, the MCA severely limited the avenues of judicial review for non-citizens held in U.S. custody. The MCA aimed to eliminate judicial review for any claims challenging any aspect of detention or treatment of all non-citizen detainees determined to be “enemy combatants” or “awaiting such determination.” The MCA also ratified the severely limited CSRT review process, established under the DTA, as a substitute for habeas corpus.

On October 18, 2006, the Department of Justice notified the U.S. District Court for the District of Columbia that because of the MCA, the district court no longer had jurisdiction to consider habeas corpus petitions brought on behalf of Guantánamo detainees.

On December 13, 2006, Salim Hamdan challenged the MCA’s new applicability to his habeas corpus petition, in light of his Supreme Court victory. This time, District Court Judge James Robertson ruled against Hamdan, finding that the MCA prohibited the federal courts from exercising jurisdiction over his habeas petition.

On February 20, 2007, the Court of Appeals of the D.C. Circuit ruled 2-1 against the detainees in the consolidated cases of Boumediene v. Bush and Al Odah v. United States. After three rounds of briefing to respond to both the DTA and the MCA and 21 months after the cases were consolidated in the D.C. Circuit, the court held that Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court as the common law habeas, according to the majority, did not extend to noncitizens captured abroad and held outside the United States. Because the court also found that the MCA eliminated any statutory right to habeas corpus, it dismissed the cases.

On March 5, 2007, CCR and co-counsel petitioned the U.S. Supreme Court to review the Court of Appeals decision that dismissed Al Odah and Boumediene and to hear the cases on an expedited schedule.

On April 2, 2007, the Supreme Court declined to hear the combined cases Boumediene v. Bush and Al Odah v. United States. Issuing unusual explanatory statements accompanying the denial of certiorari, three Justices dissented and Justices Stevens and Kennedy issued a statement in support of the denial suggesting that the detainees should exhaust the remedies available in the CSRT review scheme established by the DTA and MCA.

On June 29, 2007, the Supreme Court, in its first reversal in 60 years, announced that it would hear the consolidated Al Odah and Boumediene cases in the 2007-08 Supreme Court term. This marks the third time in the history of the detention camp at Guantánamo Bay that the Supreme Court will hear a case concerning the rights of the detainees.

On August 24, 2007, CCR and co-counsel filed opening briefs in the Supreme Court for Al Odah v. United States and Boumediene v. Bush. The petitioners’ briefs were accompanied by more than 20 amicus briefs from a diverse array of supporters, including former military leaders, former diplomats, retired federal judges, and legal scholars.

On October 9, 2007, the government filed opposition briefs in the Supreme Court for Al Odah and Boumediene.

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