Neuman, law professors file amicus brief in Supreme Court detainee case

HLS Professor Gerald Neuman ’80 has co-written an amicus brief in a case to be heard next term by the U.S. Supreme Court involving the rights of detainees at Guantanamo Bay.

In the brief, filed August 24, Neuman and a group of 23 constitutional law professors argue that the 2006 federal law cutting back on the habeas corpus jurisdiction of the federal courts in terror-related detention cases is an unconstitutional permanent suspension of the writ of habeas corpus.

Earlier this year, Neuman and many of the same scholars made a similar argument in an amicus brief filed in a different case, al-Marri v. Wright, in the U.S. Court of Appeals for the Fourth Circuit. For more information about this brief, please click here.

In June, a three-judge panel in the al-Marri case-which involved a detainee held at a naval brig in Virginia-rejected the government’s arguments that the new restrictions on habeas jurisdiction are constitutional. The ruling was widely viewed as a rebuke of the Bush Administration’s attempts to limit the role of the federal courts in terror-related detention cases.

Last week, the Fourth Circuit agreed to review the panel ruling in al-Marri en banc, and Neuman and his colleagues on the earlier brief will be re-submitting that brief for the rehearing.

The Supreme Court case-Boumediene v. Bush-is one of several detention cases that the justices have agreed to hear next term, and it involves issues similar to those in al-Marri, but with the additional question of the scope of rights available to detainees at Guantanamo Bay.

Neuman and his colleagues, including HLS professors Martha Minow, Frank Michelman, Laurence Tribe and David Shapiro, argue that the law restricting habeas jursidiction in cases involving detainees deemed “enemy combatants” by the government amounts to an unconstitutional permanent abrogation of the writ of habeas corpus, in violation of the Suspension Clause. They argue further that aliens in territory under the complete control and jurisdiction of the United States–such as Guantanamo–are protected by the Suspension Clause.