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Detainees have some powerful friends { November 14 2003 }

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Friday, November 14, 2003

Impressive Amici Persuade Supreme Court to Hear Guantanamo Cases


An impressive array of amicus briefs successfully urged the U.S. Supreme Court to hear cases filed by detainees at Guantanamo Bay, Cuba, who are challenging the legality of their detentions.

At least eight amicus briefs were filed, including some by former federal judges, three retired military officers and octogenarian Fred Korematsu, who was subjected to U.S. internment of Japanese Americans during World War II.

On Monday, the Supreme Court consolidated and agreed to hear the cases of Al Odah v. United States, No. 03-343, and Rasul v. Bush, No. 03-334. The court will determine whether U.S. courts have jurisdiction to hear claims filed by foreigners "captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base."

The U.S. Court of Appeals for the District of Columbia Circuit ruled in March that the detainees "cannot seek release based on violations of the Constitution or treaties or federal law." Al Odah v. United States, 321 F.3d 1134.

Some observers speculate that the amicus briefs may have influenced the high court to take the cases.

"As the court takes on more of these noteworthy, contentious and historic issues," says Thomas Baker, professor of constitutional law at Florida International University, "it should not come as a surprise that individuals and groups besides the litigants are motivated to speak to the U.S. Supreme Court."

Baker notes the justices seasoned their opinions in recent affirmative action cases with quotes from amicus briefs.

"The court by its behavior is inviting these groups and institutional litigators to file these briefs," he says. "The rules allow for it, and the justices are showing a growing willingness to cite these briefs and use their arguments."

Among the Guantanamo briefs is an amicus filed on behalf of former federal appellate judges, including John J. Gibbons (3rd Circuit), Nathaniel R. Jones (6th Circuit), Abner J. Mikva (D.C. Circuit), William A. Norris (9th Circuit) and H. Lee Sarokin (3rd Circuit). Other notables, such as former U.S. Sen. Paul Simon, also signed on.

Chicago-based attorney David J. Bradford of Jenner & Block, who authored the brief, says "many judges spoke with each other and decided to join the brief."

The judges seek to emphasize the importance of the separation of powers in U.S. government, Bradford says. "The way the executive branch approaches this situation is that unilateral incarceration of citizens of even friendly nations like Great Britain, Kuwait and Australia is proper without any form of judicial review.

"The judicial branch should have jurisdiction to determine whether, for example, there is a case of mistaken identity [of one of the detainees] or whether there is a right to a limited hearing," Bradford says. "But the executive takes the extreme position that the judicial branch has no jurisdiction and that it can deny all access to the courts even though Congress has not suspended habeas corpus jurisdiction."

Fred Korematsu is the litigant from the infamous Supreme Court decision Korematsu v. United States, 323 U.S. 214 (1944). In that case, Korematsu challenged the constitutionality of President Franklin Roosevelt’s executive order authorizing the internment of more than 120,000 people of Japanese ancestry on the West Coast. The court’s decision refusing to strike down the executive order has become, in the words of Korematsu’s amicus brief, "a constitutional pariah."

The Korematsu brief, authored by University of Chicago law professors Geoffrey R. Stone and David A. Strauss and New York University law professor Stephen J. Schulhofer, details other examples of infringements of civil liberties during times of war and foreign crisis. The brief cites U.S. Chief Justice William H. Rehnquist’s 1998 book All the Laws But One: Civil Liberties in Wartime.

"It may be that it is essential in some circumstances to compromise civil liberties in order to meet the necessities of wartime, but history teaches that we tend too quickly to sacrifice these liberties in the face of overbroad claims of military necessity," the brief says.

The military brief was filed on behalf of three retired officers with distinguished legal careers in the armed services. It urges the court to take the case and grant some sort of hearing for the detainees. The officers include Brig. Gen. David M. Brahms, Rear Adm. Donald J. Guter and Rear Adm. John D. Hutson, now dean and president of the Franklin Pierce Law Center in Concord, N.H.

"I think in my mind there are two overarching reasons that the U.S. ought to afford some sort of minimal due process protections to these detainees," Hutson says. "First, it implicates how future U.S. prisoners of war may be treated by our enemies and what we can expect and demand from our enemies as to how our prisoners are treated. Secondly, and more philosophically, the U.S. has been afforded a golden opportunity on a silver platter to demonstrate to the entire world, enemies and allies alike, what we stand for and what the rule of law means to us.

"We don’t want to miss this opportunity. The world is watching us, and history will record what we do. History will record not our rhetoric, but our deeds.

"Perhaps the court granting cert will be the impetus for the administration to afford these detainees some sort of due process," Hutson adds. "We would want that for our own soldiers who are detained."

©2003 ABA Journal

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