In a landmark event, a diverse group of prominent Americans and international law scholars has come together calling upon the United States Supreme Court to review Administration policy in detaining people at Guantanamo and elsewhere. They have urged the Supreme Court to hear cases brought by Yaser Hamdi, a U.S. citizen, and by citizens of allied nations held at Guantanamo, all of whom have been detained indefinitely with little or no legal process.
Seven separate amici curiae or friends-of-the court briefs have been filed
with the U.S. Supreme Court questioning the legality of U.S. treatment of
those prisoners under the Constitution, the Geneva Conventions, and international
law. Briefs have been filed by: distinguished former U.S. diplomats; former
U.S. federal judges and leading members of the private bar; former judge
advocate generals of the Navy and Marine Corps; former American POWs; the
Human Rights Institute of the International Bar Association; the Commonwealth
Lawyers Association; and Fred Korematsu, the plaintiff who challenged the
internment of Japanese-Americans during World War II.
According to Douglas Cassel, Professor of Law at Northwestern University, The filing of this many amici briefs at this stage of the proceeding in support of petitions for certiorari is an extraordinary legal event and reflects the breadth of concern for upholding fundamental American principles and the rule of law.
Following are a few statements from those briefs:
· Brief Filed by Former U.S. Diplomats
This is, from our foreign policy experience, a case of vast public
import . . . . It has been the experience of each of us that our most important
diplomatic asset has been this nations values . . . . The hint that
America is not all that it claims, that it . . . can accept that the Executive
Branch may imprison whom it will and do so beyond the reach of due process
of law demeans and weakens this nations voice abroad.
· Brief Filed by Former Federal Judges, Government Officials and Prominent Lawyers
The decisions of the Circuit Courts below, effectively denying a
meaningful review of the Executive Branchs determinations regarding
petitioners and essentially closing the courthouse door to them, disregard
one of the most basic and fundamental foundations of our system of government:
the rule of law.
· Brief Filed by Former Judge Advocate Generals
To be sure, this is a perilous time, as the President has stated.
But that does not justify indefinite confinement without any type of hearing
or judicial review. The United States played a major role in the development
and adoption of the Geneva Conventions. The requirements of those Conventions
are incorporated directly into American Military Regulations. American
failure to provide foreign prisoners with the protections of the Geneva
Conventions may well provide foreign authorities, in current or future conflicts,
with an excuse not to comply with the Geneva Conventions with respect to
· Brief Filed by Former American POWs
As a result of [our] own experiences, [we] have an interest in fostering
the development, acceptance and enforcement of international norms pursuant
to which prisoners of war and others captured during armed conflicts will
be treated humanely and in accordance with the rule of law. In particular,
we wish to ensure that the treatment by the United States of foreign
detainees . . . is such that the United States and former American POWs
retain the moral authority to demand fair and humane treatment for any future
Americans detained by foreign governments. It is important for the
Supreme Court to take these cases because
they raise the critical question of whether, in a world in which the United States seeks to persuade other nations to govern in accordance with the rule of law, the United States will honor its own commitment to that principle.
· Brief Filed by the Human Rights Institute of the International Bar Association
The United States treatment of its prisoners at Guantanamo is in
clear violation of international legal principles: International law
guarantees [protection against arbitrary detention] for any person detained
under the authority and control of a State, regardless of whether that detention
occurs within the States sovereign territory. The guarantee applies
in times of war, as well as peace.
· Brief Filed by the Commonwealth Lawyers Association (CLA)
CLA is an organization dedicated to upholding the rule of law throughout
the British Commonwealth. It points out that the courts of England have
firmly rejected the argument made by the U.S. government in these cases
that courts lack jurisdiction over foreign nationals held in custody by
governments outside their borders. If it were the United Kingdom,
and not the United States of America, which controlled the Guantanamo Bay
Naval Base and the detained persons held there, then the writ of habeas
corpus would be available before the English courts regardless of the nationality
of the detained persons.
· Brief Filed by Fred Korematsu
More than 60 years ago, Mr. Korematsu challenged the constitutionality
of the Executive Order that authorized the internment of a 120,000 individuals
of Japanese descent. He has committed himself to ensuring that Americans
do not forget the lessons of their own history. Mr. Korematsu finds
that the extreme nature of the governments position [in these
cases] is all-too-familiar . . . . [T]he claim . . . that the government
may detain individuals indefinitely without any fair hearing overreaches
the bounds of military necessity. To avoid
repeating the mistakes of the past, [the Supreme Court] should make clear that the United States respects fundamental constitutional and human rights even in time of war.
Copies and summaries of each of these briefs, as well as of the petitions for certiorari filed on behalf of Mr. Hamdi and the foreign nationals detained at Guantanamo, will be available at a news conference scheduled for 10:00 a.m.,
Thursday, October 9 in the Treasury Room at the J.W. Marriott Hotel (1331
Pennsylvania Avenue, N.W.). They may also be found on line at