Habeas Corpus

  • August 31, 2010
    A federal appeals court has declined to reconsider its earlier decision limiting the ability of detainees at Guantanamo Bay to lodge legal challenges to their confinement.

    In analysis for SCOTUSblog, Lyle Denniston writes that the Jan. 5 decision by a panel of the U.S. Court of Appeals for the District of Columbia "upheld a wide-ranging view of the government's authority to detain non-citizens suspected of terrorism, ruling that the power is not limited in any way by international law - a view that even the Obama Administration indicated it did not share."

    Denniston, however, notes that the federal appeals court's action today in Al Bihani v. Obama produced lengthy statements by several of the circuit's judges "to narrow the scope of" the initial panel decision, which upheld the imprisonment of Al Bihani, a former cook for the Taliban who maintains that he never engaged in combat against U.S. forces. The federal appeals court denial of rehearing and the judge's statements are available here (pdf).

  • April 15, 2010
    During a Senate Judiciary Committee hearing, Attorney General Eric Holder "offered a passionate and sharp denunciation ... of the attacks leveled by Liz Cheney and others accusing his department of aiding al Qaeda sympathizers," The Huffington Post's Sam Stein reports.

    For several months Sen. Charles Grassley has loudly called for Holder to release more information about Department of Justice attorneys who, before entering government service, had provided legal representation to military detainees. Grassley's effort was backed by former Vice President Dick Cheney's daughter, Liz, when a group she helps lead released a scathing YouTube video tagging the DOJ attorneys the "Al Qaeda Seven." At yesterday's oversight hearing, Grassley again sought to wrench more information from Holder about the attorneys.

    But Holder pushed back. "There has been an attempt to take the names of the people who represent Guantanamo detainees and to drag their reputations through the mud," Holder said. "There were reprehensible ads in essence to question their patriotism. Their names are out there now. I'm simply not going to be a part of that effort. I would not allow good, decent lawyers who have followed the best traditions of American jurisprudence ... I will not allow their reputations to be besmirched. I will not be a part of that."

    Stein reported that Holder's defense was applauded by Committee member Sen. Richard Durbin, who said, "I think you are standing up for a very fundamental principle and rule of law here that goes back to John Adams."

    Cheney's YouTube ad ignited a backlash, with prominent Republicans weighing in against the attacks. Former Independent Counsel Kenneth Start blasted the attacks on the DOJ attorneys as "shameful. For more on the matter, see ACSblog posts here

  • March 5, 2010
    Conservatives, including Sen. Charles Grassley and a group affiliated with Liz Cheney, Keep America Safe, have attracted plenty of media attention for sharply criticizing Department of Justice lawyers who represented military detainees earlier in their careers. A hyperbolic video by Keep America Safe called "DOJ: Department of Jihad?" has been blasted as "beyond a cheap shot" by former Bush White House attorney Reginald Brown.

    But what's gone largely missing in the story is comparison with a similar situation that occurred during the George W. Bush administration. A top Pentagon official, Charles "Cully" Stimson, commented in a radio interview that he found it "shocking" that a number of U.S. law firms had represented Guantanamo Bay detainees. Stimson also suggested that some of the firms were not forthcoming about who was paying for the representation, telling Federal News Radio the firms should be pressed on the matter. "Some will maintain they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

    Just as the current attacks by Keep America Safe have sparked bipartisan criticism, Stimson's January 2007 comments drew sharp critiques across the political spectrum. As noted by The Huffington Post's Sam Stein, Ted Olson, former solicitor general during the Bush administration and a member of the Federalist Society's Board of Visitors, co-authored with then-Georgetown law school professor Neal Katyal an article for Legal Times blasting Stimson's comments. (About a month after his attacks on the law firms, Stimson resigned his Pentagon post.)

    Olson (pictured) and Katyal wrote: 

    The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession.

    When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.


  • March 5, 2010
    Guest Post

    By David J. Cynamon, a partner in the Washington, D.C. office of Pillsbury Winthrop Shaw Pittman LLP. Mr. Cynamon represents the Kuwaiti prisoners at Guantanamo.

    The Supreme Court's recent per curiam decision vacating the D.C. Circuit's opinion in Kiyemba v. Obama, concerning the scope of a federal court's habeas authority to order the release of Guantanamo prisoners, comes as no surprise. Once the Supreme Court granted review - which was something of a surprise - it was clear that the Obama administration would make every effort to moot the case before a decision on the merits. Although those efforts were largely successful, the result is good news, at least in the short term, for Guantanamo prisoners who win their habeas cases.

    Kiyemba involves the Chinese Uighur prisoners at Guantanamo. After the Supreme Court's June 2008 decision in Boumediene v. Bush confirmed that the writ of habeas corpus extended to Guantanamo, the government conceded what had long been known: the Uighurs were not "enemy combatants" and had not supported the Taliban or Al Qaeda in fighting against the United States in Afghanistan. Judge Ricardo Urbina of the U.S. District Court for the District of Columbia granted their habeas petition. But they could not be released to China, where they would suffer government persecution or worse. Nor would any other country accept them because of Chinese threats of reprisal. Accordingly, Judge Urbina ordered them released into the United States. The government appealed, and a panel of the D.C. Circuit reversed, holding that the federal courts have no authority to order the Executive Branch to admit an alien into the country.

    Although the factual issues in Kiyemba were unique, the breadth of the D.C. Circuit's reasoning significantly weakened the habeas remedy for all Guantanamo detainees. judges of the district court read Kiyemba as precluding them from granting the normal habeas remedy of immediate release for prisoners whose petitions had been granted; rather, the court in such cases ordered the government to take "all necessary and appropriate diplomatic steps to facilitate" release. These "pretty please" orders gave the government substantial wiggle room, and it took full advantage. Even in cases in which successful petitioners wanted to return to their home countries, and their home countries wanted them back, the government demanded that the home countries impose restrictions (such as withholding passports) as a condition of the prisoners' release.

    Thus, when the Supreme Court granted certiorari in Kiyemba, it appeared that at least some of the justices were concerned that the D.C. Circuit's decision had emasculated Boumediene. The government immediately stepped up its efforts to resettle the Uighurs elsewhere in order to avoid a potential reversal. By early this year, all but five Uighurs had been resettled (or had agreed to be resettled) in other countries, and the remaining five had been offered resettlement. In these circumstances, the Supreme Court logically remanded the case so that the lower courts could determine the legal impact, if any, of the new facts.

  • February 4, 2010
    Picking Cotton
    Our Memoir of Justice and Redemption
    Jennifer Thompson-Cannino and Ronald Cotton, with Erin Torneo

    [Editors' Note: After the break, this post includes the author's first-hand account of a violent crime that may not be appropriate for all readers.]

    By Jennifer Thompson-Cannino, a mother and advocate for judicial reform 

    As I travel across America telling our story, one of the most common questions I hear is, "How long did it take you two to write your book"? It took 25 years.

    In July of 1984, I attended Elon College, a small school nestled beside Burlington, N.C. Living off-campus, I studied hard, worked two jobs, and dated my long-term boyfriend. It was a particularly hot summer, with both the temperature and humidity consistently high. My boyfriend and I spent one of those sticky, July days together playing tennis and later going out to dinner. We planned to attend a party that night, but a raging headache sent me home around 9 p.m. and I went to bed under a loud and rattling air conditioning unit hanging over my bed. I never heard the break-in, but the clock read 3 a.m. when I sensed a presence in the room. The sound of feet sliding on carpet and a brush against my left arm sharpened my consciousness.

    "Who is it? Who's there?" I asked. In the blink of an eye he was on top of me, and I felt a cold, sharp object go to me throat. My screams were quickly muffled with a gloved hand and the violent command "Shut up or I'll kill you!" Every nerve ending was on high alert; I knew that my life was in grave danger, and there was nothing I could do to prevent him from killing me. Images of my mother and father filing into the morgue flashed through my mind. I would never see another sunset, tell my family that I loved them, attend graduate school or be a mom. I could not defend myself, and this horrible monster knew it.