Al Odah v. United States

Al Odah v. United States is a court case filed by the Center for Constitutional Rights and co-counsels challenging the legality of the continued detention, without charge, of Guantanamo detainees. The case is in many ways a continuation of the landmark Center for Constitutional Rights case Rasul v. Bush, which was decided by the Supreme Court in 2004. That decision determined that D.C. courts are available to Guantanamo detainees as a venue for habeas corpus petitions. Since that decision, Congress during the Bush administration has passed legislation that has interfered with the ability of detainees to contest their detentions, a procedure provided for in Rasul. The current Al Odah case challenges these obstacles. Like Rasul, Al Odah is an umbrella effort, incorporating sixteen habeas corpus petitions. Consolidated with Boumediene v. Bush, it was heard by the Supreme Court on December 5, 2007, and was one of the most anticipated cases before the Court in its term.^{[1][2][3][4][5][5][6]}

The decision, striking down the Military Commissions Act, was handed down on 12 June 2008.^[7][8]

Case History

Al Odah v. United States was originally filed by the Center for Constitutional Rights and co-counsel in April 2002 on behalf of twelve imprisoned Kuwaitis, including Fawzi Al Odah, seeking the right of habeas corpus. A government motion to dismiss the petition was granted on July 30, 2002 by Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. The Center for Constitutional Rights appealed the case, which had been consolidated with the other two leading habeas corpus petitions, Rasul v. Bush and Habib v. Bush. On March 11, 2003, the D.C. Circuit Court of Appeals once more dismissed the case.

On November 10, 2003, the Supreme Court granted certiorari to the three leading habeas petitions, consolidated under the name Rasul v. Bush. On June 28, 2004, the Supreme Court issued a landmark decision on the subject of Guantanamo detainees. In Rasul v. Bush, the Court determined that with respect to Guantanamo, the right to habeas corpus does not depend on citizenship. This decision affirmed the jurisdiction of the U.S. court system over Guantanamo cases, giving the prisoners detained there a right to challenge their detention in federal courts. Following this decision, the habeas petitions were remanded to lower courts.

On July 7, 2004, the government established Combatant Status Review Tribunals (CSRT’s), military courts created as a substitute for judicial process in U.S. courts. The U.S. government has consistently asserted that the detainees at Guantanamo do not have the right to due process and established the CSRT process as an alternative to establish the guilt or innocence of detainees. Following the establishment of these tribunals, the government filed motions to dismiss pending habeas corpus cases, including Al Odah, on the basis that the cases should be heard by the CSRT system. D.C. District Court Judge Richard J. Leon dismissed two cases assigned to him on this basis on January 19, 2005. Days later, on January 31, Judge Joyce H. Green ruled that detainees are entitled to constitutional protections, and that the CSRT system is inadequate to the task.

On December 30, 2005, Congress Passed the Detainee Treatment Act (DTA). The DTA removed Guantanamo habeas corpus cases from the jurisdiction of the D.C. circuit courts and gave authority over these cases to the CSRT and military commission system. In January 2006, government lawyers moved to dismiss pending habeas cases, arguing that the DTA should be applied retroactively. The affected cases included Al Odah and Boumediene at the circuit court level, and Hamdan v. Rumsfeld at the level of the Supreme Court. On June 29 2006, the Supreme Court ruled in Hamdan that the DTA cannot be applied retroactively, and that the military commissions created by a 2001 executive order violate both military law and the Geneva conventions. The Supreme Court decision made it possible for Al Odah to continue in the U.S. court system, as opposed to the military court system.

In response to the Hamdan ruling, the Military Commissions Act (MCA) was passed on October 17, 2006. The MCA described the CSRT review process as a substitute for habeas proceedings in U.S. courts and removed judicial review of claims challenging detention by non-citizens determined by their CSRT’s to be enemy combatants or awaiting such determination. On February 20, 2007, the D.C. Court of Appeals ruled that the Boumediene and Al Odah plaintiffs, as non-citizens, were not entitled to habeas review due to the passage of the Military Commissions Act.

The Center for Constitutional Rights and its co-counsel appealed the consolidated cases to the Supreme Court. Initially, the Court refused to hear the case, advising attorneys and plaintiffs to first exhaust the review process set up by the DTA. Less than two months later, however, in its first reversal in sixty years, the Supreme Court agreed to hear the consolidated Al Odah and Boumediene cases during the 2007-2008 term.^[9]

It has been speculated that a widely publicized insider condemnation of the CSRT system motivated the court's reversal.^[10] Lt. Col Stephen Abraham, an attorney and military reservist publicly described the CSRT system as deeply flawed, saying that it relies on evidence that would not be permissible in a court of law and that it is designed to return a guilty verdict. Abraham submitted his affidavit to the Supreme Court on June 22, 2007, just days before the Court reversed its decision and added the Al Odah case to their 2007-2008 docket. ^[11]Referring specifically to the Al Odah CSRT hearings, in which he participated, Abraham stated that, "What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence."^[12]

The Supreme Court heard oral arguments on the case on December 5, 2007 as demonstrators in detainee-like orange jumpsuits and black hoods assembled outside the building.^[13] The day in court was widely reported in the United States and international media.

Petitioners' and Respondents' Briefs

The petitioners contextualize their case by characterizing the Guantanamo Bay prison camp as “an international symbol of the Executive branch’s contempt for the rule of law and a deep stain on the reputation of the United States at home and abroad.” The petitioners’ brief argues that the men at Guantanamo are entitled to habeas corpus, and that the Military Commission Act violates the Constitution’s suspension clause. The brief further argues that the military commissions and Combatant Status Review Tribunals do not satisfy the requirements of habeas corpus. The petitioners conclude that detainees should be given a “searching judicial review of the factual and legal bases for their detentions."^[14]

In their brief, the government respondents argue that the Military Commissions Act eliminated federal court jurisdiction over Guantanamo habeas petitions. In addition, the respondents’ legal team submits that the Military Commissions Act does not violate the suspension clause and that the plaintiffs should exhaust the review system set up by the DTA before challenging its legitimacy.^[15]

Al Odah in the News

The Supreme Court hearing of the Al Odah case is widely recognized in the media as a serious test of the Bush administration's policy with regard to Guantanamo and detainee rights. Fox News describes Al Odah as "one of the highest-profile cases the Supreme Court will hear this year."^[16] The IPS reports that "the decision of the nine justices" on the Al Odah case "could bring the entire administration's detention policy down in flames -- or not."^[17] The New York Times Editorial Board addressed the case in their October 23 editorial, "The Supreme Court Showdown of the Year." The Times expressed its belief that "it is important for the Supreme Court to make clear that the detainees have a constitutional right to have a judge determine whether they are being properly held.”^[1] The Village Voice wrote on November 6 that "we will know by the end of the court's term next year whether this Supreme Court...will continue to enforce the essential American principle that none of us is above the law—not even the person who strides to the music of 'Hail to the Chief.'"^[18]

The New York Times previewed the December 5, 2007 oral arguments, saying that what is at stake in the case "is whether the Supreme Court itself will continue to have a role in defining the balance [of liberty versus security] or whether, as the administration first argued four years ago, the executive branch is to have the final word".

Captives whose cases were amalgamated with al Odah v. Bush

Some cases amalgamated with al Odah v. Bush^[19]

065	Omar Rajab Amin
205	Nasser Nijer Naser Al Mutairi
213	Khalid Abdullah Mishal Al Mutairi
217	Abdulaziz Sayer Owain Al Shammari
220	Abdullah Saleh Ali Al Ajmi
228	Abdullah Kamal Abdullah Kamal Al Kandari
229	Mohammed Funaitel Al Dihani
232	Fawzi Khalid Abdullah Fahad Al Odah
551	Fwad Mahmoud Al Rabiah
552	Fayiz Mohammed Ahmed Al Kandari
568	Adil Zamil Abdull Mohssin Al Zamil

Military Commissions Act

The Military Commissions Act of 2006 mandated that Guantanamo captives were no longer entitled to access the US civil justice system, so all outstanding habeas corpus petitions were stayed.^[20]

Boumediene v. Bush

On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that the Military Commissions Act could not remove the right for Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated.

On July 18, 2008 David J. Cynamon filed a "PETITIONERS’ STATUS REPORT" in Al Odah, v. United States Civil Action No. CV 02-0828 (CKK) on behalf of Fawzi Khalid Abdullah Fahad Al Odah, Fayiz Mohammed Ahmen Al Kandari, Khalid Abdullah Mishal Al Mutairi, Fouad Mahmoud Al Rabiah.^[21] He wrote that they were the four remaining Kuwaiti captives in Guantanamo. He wrote that none of the four men had been cleared for release. He wrote that the government had completed "factual returns" for all four men -- but those factual returns had contained redacted sections.

On 12 December 2008 DoJ official John Battaglia filed a "NOTICE OF SERVICE OF UNCLASSIFIED, PROTECTED FACTUAL RETURN" with regard to Faez Mohammed Ahmed al-Kandari (ISN 552) in Civil Action No. 02-CV-0828 (CKK).^[22] Battaglia sought to have the unclassified factual return designated as "protected information". He added: "Respondents, however, do not object to petitioner’s counsel sharing the unclassified factual return with the petitioner-detainee in this case."

References

1. ^ ^{a b} The Supreme Court Showdown of the Year, The New York Times, October 23, 2007
2. ^ "Gitmo Panelist Slams Hearing Process: Lt. Col. Stephen Abraham Is First Member Of Military Panel To Challenge Guantanamo Bay Hearings". CBS. June 23, 2007. http://www.cbsnews.com/stories/2007/06/23/world/main2970288_page2.shtml. Retrieved 2007-06-23. 
3. ^ "Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, June 14th, 2007" (PDF). United States Supreme Court. June 14, 2007. http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf. Retrieved 2007-06-25. 
4. ^ Mike Rosen-Molina (June 22, 2007). "Guantanamo tribunal officer says CSRTs pressured on 'enemy combatant' rulings". The Jurist. http://jurist.law.pitt.edu/paperchase/2007/06/guantanamo-tribunal-officer-says-csrts.php. Retrieved 2007-06-25. 
5. ^ ^{a b} Carol D. Leonnig, Josh White (June 23, 2007). "An Ex-Member Calls Detainee Panels Unfair: Lawyer Tells of Flawed 'Combatant' Rulings". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2007/06/22/AR2007062202230.html. Retrieved 2007-06-24. 
6. ^ Farah Stockman (June 23, 2007). "Officer criticizes military tribunals: Affidavit cites problems at Guantanamo Bay". Boston Globe. http://www.boston.com/news/nation/washington/articles/2007/06/23/officer_criticizes_military_tribunals/. Retrieved 2007-06-24.  mirror
7. ^ Justices Rule Terror Suspects Can Appeal in Civilian Courts
8. ^ Transcript of Supreme Court oral arguments for Boumediene v. Bush (No. 06-1195) and Al Odah v. US (06-1196)
9. ^ CCR: Al Odah Case Page
10. ^ Guantanamo Whistleblower Launches New Attack on Rigged Tribunals, The Huffington Post, November 20, 2007
11. ^ Gitmo Panelist Slams Hearing Process, CBS, June 23, 2007
12. ^ Stephen Abraham (June 15, 2007). "Declaration of Stephen Abraham" (PDF). United States Department of Justice. p. page 8. http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf. Retrieved 2008-05-08. 
13. ^ Court Divided After Day One of Guantanamo Case, NPR, December 6, 2007
14. ^ Brief for the Petitioners
15. ^ Brief for the Respondents
16. ^ Exclusive: Clement Previews Detainee Case Before Supreme Court, Fox News, November 7, 2007
17. ^ Gitmo Policy Faces Another Supreme Court Test, IPS, November 21, 2007
18. ^ Bush's Man Mukasey, The Village Voice, November 6, 2007
19. ^ "RESPONDENTS’ RESPONSE TO COURT’S AUGUST 7, 2006 ORDER" (PDF). United States Department of Defense. August 15, 2006. Archived from the original on 2008-06-27. http://web.archive.org/web/20080627111630/http://www.pegc.us/archive/OK_v_Bush/govt_resp_to_GK_20060815.pdf. Retrieved 2008-06-23. 
20. ^ Peter D. Keisler, Douglas N. Letter (2006-10-16). "NOTICE OF MILITARY COMMISSIONS ACT OF 2006" (PDF). United States Department of Justice. http://natseclaw.typepad.com/natseclaw/files/Hamdan.28j.letter.pdf. Retrieved 2008-09-30.  mirror
21. ^ David J. Cynamon (2008-08-19). "Guantanamo Bay Detainee Litigation: Doc 88 -- petitioners' status report" (PDF). United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/88/0.pdf. Retrieved 2008-08-23.  mirror
22. ^ John Battaglia (2008-12-12). "Guantanamo Bay Detainee Litigation: Doc 1265 -- NOTICE OF SERVICE OF UNCLASSIFIED, PROTECTED FACTUAL RETURN". United States Department of Justice. http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008mc00442/131990/1265/0.pdf. Retrieved 2008-12-20. 

External links

• "MEMORANDUM OPINION (July 26, 2004)" (PDF). United States Department of Justice. 2004-07-26. http://www.pegc.us/archive/Al_Odah_vs_US/memo_opinion_20040727.pdf. Retrieved 2008-11-19. ^{[dead link]} mirror