Petitioners’ Briefs Filed in Detainee Cases
Lawyers for detainees at Guantanamo Bay filed merits briefs today in Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196).
The brief in Boumediene is here, and click here and here to read the petitioners’ briefs in Al Odah. The Justice Department’s briefs in both cases are due October 9.
One amicus brief filed today in support of the petitioners came from Salim Hamdan, available here. The Court has yet to take action on his two pending appeals, 06-1169 (rehearing petition) and 07-15 (cert before judgment).
At least 20 other amicus briefs were filed in support of the petitioners, with still another filed in support of reversal. They are listed and linked after the jump. See Marty’s post below for his inital reaction to one of the amicus filings.
Association of the Bar of the City of New York
Coalition of Non-Governmental Organizations
Commonwealth Lawyers Association
Federal Courts and International Law Professors
Federal Public Defender for the Southern District of Florida
Former United States Diplomats
International Humanitarian Law Experts
National Institute of Military Justice
Professors of Constitutional Law and Federal Jurisdiction
Specialists in Israeli Military Law and Constitutional Law
United States Senator Arlen Specter
United Nations High Commissioner for Human Rights
383 United Kingdom and European Parliamentarians
Canadian Parliamentarians and Professors of Law (in support of reversal)
According to footnote 28 of the BRIEF OF PROFESSORS OF CONSTITUTIONAL LAW AND FEDERAL JURISDICTION AS AMICI CURIAE IN SUPPORT OF PETITIONERS, “[t]his case does not require the Court to address the applicability of constitutional limitations to U.S. government action with regard to foreign nationals in territory under foreign governance, and Amici take no position on that issue here.”
However, the logic of Amici’s argument leads exactly to the position that constitutional limitations to U.S. government action apply to foreign nationals in territory under foreign governance. There is no limiting principle in Amici’s argument that would not extend to American military forces operating in Iraq. Nor is one present in Petitioner’s brief. It is remarkable that American exceptionalism can be taken so far as to obliterate the sovereignty of foreign governments and invalidate foreign constitutions in the name of habeas corpus for a few detainees. I imagine if Petitioners are victorious it will not be long before the Institute of Justice is asserting Takings claims on behalf of Iraqis whose homes were bulldozed during an American raid. Call it the Kelo-Boumediene Surge.
Comment by Jacques McKenzie — August 26, 2007 @ 4:21 pm
And you thought I was kidding? There are already such lawsuits in Circuit Courts of Appeal.
http://howappealing.law.com/091707.html#028194
It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide.” So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in a decision issued today.
According to today’s ruling, the plaintiffs sued Caterpillar, Inc. in federal court in Seattle after their family members were killed or injured when the Israeli Defense Forces demolished homes in the Palestinian Territories using bulldozers manufactured by Caterpillar.
Comment by Jacques McKenzie — September 17, 2007 @ 2:27 pm
This reminds me of the 1990s cases about “stolen art and property” from the holocaust, where jewish and other victims of nazi theft sued many major european banks and businesses in US courts for allegedely trafficking in stuff the nazis stole during WW2, employing slave labor, etc.
In those cases, political pressure was applied by holocaust victim activist groups and their lawyers to members of congress and the clinton administration (and even some state/city governments, such as in New York), who at the time were debating whether to allow european financial institutions to enter lucrative US markets. The message to these banks and their country governments being “settle up generously with these claimants, or you’ll find getting regulatory approval very rough going”.
It bothered me to see the US legal system used to apply that kind of leverage against foreign governments and businesses.
Not the same thing as this habeas situation, but close enough to bother me.
Comment by steve jaros — September 17, 2007 @ 7:36 pm
It bothered me to see the US legal system used to apply that kind of leverage against foreign governments and businesses.
It isn’t exactly the same, Steve, but it certainly is substantially similar. The problem with Boumediene, for me, is that while it may represent one of the better cases for the “detainee rights” side on the spectrum of detainee cases (if “public safety” is the opposing pole), the rule that the detainee rights advocates hope to establish is really of use to them in other cases with worse facts for their cause, like al-Marri. The problem then comes in when there’s a cascade effect of this terrible rule — which perhaps should be limited to cases precisely like Boumediene’s — being applied to cases like al-Marri’s, which totally guts the government’s power to provide public safety precisely in those cases where it should have such power. It is rather obvious that the ultimate target is not American policy, but the impact American policy has on other interests around the globe. We have elections to settle that kind of stuff, not Supreme Court adjudications. But self-interested parties want leverage. It’s easier than winning an election.
Comment by Jacques McKenzie — September 18, 2007 @ 5:01 pm
Jacques, good post! (meaning that i agree with you).
:)
Comment by steve jaros — September 18, 2007 @ 8:24 pm
Hopefully, the Supreme Court does, too.
Comment by Jacques McKenzie — September 18, 2007 @ 10:19 pm