RASUL V. BUSH: GUANTANAMO IN THE SUPREME COURT
Within a few weeks of the 9/11 attacks, CCR recognized that the tragedy would be used by the Bush administration as an excuse for draconian cutbacks of our civil liberties at home and for expanded U.S. war-making abroad. September 11 would become an excuse, whether in Guantanamo, Afghanistan, Iraq, or here at home, for the wholesale infringement of fundamental freedoms.
On November 13, 2001, President Bush declared that he had the authority to detain non-citizens indefinitely in a breathtaking assertion of executive power, more akin to absolute monarchies or dictatorships. Executive detentions were among the worst abuses complained of by the American revolutionaries. Even before that, the Magna Carta, the Charter of English Liberty extracted from King John in 1215, forbade executive detention and insisted on the right to a trial by one’s peers. That is how far the Bush administration exceeded its lawful authority.
In January 2002, when newspapers reported that the first prisoners from the Afghanistan war and President Bush’s “war on terror” were being sent to Guantanamo, we knew what Guantanamo meant. CCR had represented Haitian refugees at Guantanamo in the early 1990’s and understood that the Administration believed that Guantanamo was a “law free zone” and that no court could review their actions with regard to persons detained there. We knew that imprisonment at Guantanamo meant not only a tough legal fight to protect detainees’ rights, but also that there would be no means to monitor the treatment of those detained. The Guantanamo detainees were imprisoned without any right to see, speak, or write to lawyers; without visits from family members; and without any charges specified against them. The Administration painted them falsely as the “worst of the worst,” ordering their imprisonment until the war on terror was over, a period that could easily run fifty years or more.
It was not an easy decision for the Center for Constitutional Rights to get involved, but we saw these detentions as an extremely serious assault on all of our fundamental liberties. At that time we could not even imagine the abuses that have now been revealed. We began to round up other lawyers to work with us, but the only ones willing were anti-death-penalty lawyers, used to representing extremely unpopular clients. The lawyers who stepped forward to work with us included Joe Margulies, a CCR cooperating attorney who became a key litigator in the Supreme Court case; Clive Stafford-Smith, Director of the Louisiana Crisis Assistance Center; and Eric Freedman, a Hofstra Law School professor.
The atmosphere in the U.S. in January 2002 was so intimidating that we could not get a single other legal organization to join CCR. We had trouble even getting local counsel in Washington, D.C. to file the papers that would argue that the detentions were illegal. When it became known that we were representing Guantanamo detainees, CCR and its lawyers got letters that asked why we didn’t just let the Taliban come to our houses and eat our children.
Nevertheless, we finally filed for a writ of habeas corpus in the federal district court in the District of Columbia on behalf of David Hicks, Shafiq Rasul and Asif Iqbal. A writ of habeas corpus is the legal means by which a person detained can require the government to justify their detention. Subsequently we added Mamdouh Habib, another Australian who had been picked up in Pakistan and shipped to Guantanamo via Egypt, where we believe he was tortured. We never met or spoke with our clients, and they did not know of our efforts. Shortly after CCR’s case was filed, similar claims were raised by a private law firm, Shearman and Sterling, on behalf of a dozen Kuwaiti citizens detained at Guantanamo. Its lead counsel, Thomas Wilmer, played an instrumental role in the Guantanamo cases.
The administration’s principal argument was that no alien held by the United States outside the country had any constitutional rights—not even the right to a hearing to challenge their detention by the U.S. The lower courts agreed, and we lost our case in U.S. District Court and our appeal to the Circuit Court. Then the Supreme Court, over the Administration’s objections, decided to review the case. On April 20, 2004, former federal appeals court member Judge John J. Gibbons argued the case for CCR and Shearman & Sterling.
Called by some legal scholars, “the most important civil rights case of the last half century,” the Supreme Court rendered its decision on June 28, 2004. The court held that the detainees had the right to file writs of habeas corpus with U.S. courts to test the legality of their detentions. The decision was a major blow to the Administration’s view that it had “a blank check” in its so-called war on terror.
A NOTE ON CCR
CCR has been instrumental in fighting for people’s rights since its beginnings when it defended civil rights activists in the South in the days of Martin Luther King. It has been the leading legal institution fighting for our rights since 9/11. Not only is it lead counsel in the Guantanamo cases, but it is representing, in a class action, Muslim and Arab detainees arrested in the Ashcroft sweeps in the U.S. that followed 9/11; it is legal counsel to Maher Arar, the Canadian citizen sent or “rendered” to Syria where he was tortured; and filed Saleh v. Titan, alleging a conspiracy to commit torture in Iraqi prisons by the independent contractors Titan and CACI, Inc. In addition, CCR won the first case declaring a section of the Patriot Act unconstitutional.
I would like to thank Shearman & Sterling and its lead counsel, Thomas Wilmer, a terrific and determined lawyer. And I must thank the British lawyers, especially Gareth Peirce and Louise Christian, Clive Stafford Smith, and the courageous military defense attorneys with whom we have worked. Finally, Judge Gibbon and Gita Gutierrez pulled it all together.
— Michael Ratner, President of the Center for Constitutional Rights