HLS Professor Gerald Neuman ’80 has co-written an amicus brief challenging the constitutionality of a new law denying courts jurisdiction to entertain petitions for writs of habeas corpus by alien detainees whom the government has deemed “enemy combatants.”
The brief was filed in the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., in the case of Ali Saleh Kahlah al-Marri, a Qatari student arrested in 2001 in Peoria, Ill. and detained as an enemy combatant after the government alleged that he was an al-Qaeda “sleeper” agent.
Al-Marri has been under detention for more than three years at a naval brig in South Carolina.
Neuman co-wrote the amicus brief with HLS Visiting Professor Sarah Cleveland and Dean Harold Koh ’80 of Yale Law School, on behalf of 26 other professors of law nationwide, including HLS faculty members Laurence Tribe ’66, Martha Minow, Frank Michelman ’60 and Professor Emeritus David Shapiro ’57.
Students in HLS’s Human Rights clinical program assisted with the brief, Neuman said.
Earlier this fall, Minow sent a letter to members of Congress on behalf of more than 600 legal scholars nationwide urging the legislators not to adopt the law, then pending, because of its virtual elimination of the chance for alleged enemy combatants to bring habeas challenges to their detentions. Congress passed the bill, however, and on Oct.17 President Bush signed it into law as the Military Commissions Act of 2006.
In their amicus brief, Neuman and his colleagues challenge Section 7 of the Act, the section denying courts jurisdiction to hear habeas petitions by enemy combatants, on the grounds that it amounts to an unconstitutional permanent abrogation of the writ of habeas corpus.
Article 1, Section 9 of the Constitution – known as the Suspension Clause – prohibits Congress from suspending the writ “unless when in cases of rebellion or invasion the public safety may require it.” Here, say the authors, there is no rebellion or invasion of the sort that would justify a temporary suspension of the writ.
Moreover, they write, the Act’s “prohibition of habeas corpus jurisdiction is permanent. The statute is not limited to a particular span of years or the duration of a particular emergency. Instead, it decrees a permanent alteration of the federal habeas corpus statute.” The Suspension Clause, they argue, prohibits permanent abrogation of the writ.
The government has maintained that enemy combatants and prisoners of war are not entitled to bring habeas corpus challenges to their detentions. But in their amicus brief, the professors squarely reject that position.
The Military Commissions Act is presently the subject of two other federal court challenges, both of them pending in the D.C. Circuit. But, unlike al-Marri, who was arrested and held in the U.S., the detainees in the other two cases were seized abroad and sent to the U.S. naval base at Guantánamo Bay, Cuba. Those cases present additional issues concerning the availability of constitutional protections to alien detainees outside the sovereign territory of the United States – issues that don’t complicate the al-Marri case.
In a story carried by the Associated Press and various other news outlets, it was noted that the brief was signed by an unusual alliance of professors from across the political spectrum, ranging from libertarians to conservatives to liberals. — Robb London