Detainee Policy
In the aftermath of 9/11, the Bush administration authorized the wholesale detention without charge of individuals suspected of terrorism. Despite the constitutional right that allows the imprisoned to go to court and question the grounds for their detention (habeas corpus), the government fought to deny these individuals any access to judicial review. The Brennan Center was in the trenches of this fight, challenging the government’s military detention of an “enemy combatant” within the United States (Al-Marri v. Wright) and of other U.S. citizens overseas (Omar v. Harvey and Munaf v. Green). We also submitted amicus briefs in several cases involving detainees at Guantánamo Bay, Cuba.
Important progress has been made. We won a significant victory in Al-Marri, when the Supreme Court agreed to vacate a poorly-reasoned Fourth Circuit decision after the government decided to bring charges against Al-Marri, thus mooting the case. And the Supreme Court in 2008 held that persons detained at Guantánamo have a constitutional right to judicial review. But much work remains. The Obama administration has argued that judicial review is not available to detainees held at the Bagram military prison in Afghanistan, and it has argued that the right to habeas corpus does not encompass a right to be released into the United States—even when the only alternative is continued detention. Moreover, the government continues to make use of military commissions that lack fundamental attributes of due process.
The Brennan Center is working to ensure that the detention, interrogation, and trial of terrorist suspects comports with the Constitution and the rule of law.
Litigation
Read about our representation in:
Read our amicus briefs in:
- Kiyemba, addressing whether courts can order detainees released into the U.S. if there is no other way to effectuate a grant of habeas corpus.
- Al-Maqaleh v. Gates, addressing whether detainees at Bagram have a right to habeas corpus
- Salahi v. Obama, addressing whether the 2001 Authorization for Use of Military Force authorizes the government to detain a person who was captured far from any battlefield, who has no connection to 9/11, and who has never fought against the U.S. in Afghanistan.
Advocacy
Click here to read our opinions about preventive detention and military commissions.
Mohammedou Salahi v. Barack Obama (Amicus Brief)
The Brennan Center for Justice and Reprieve file a brief as amici curiae in support of Salahi.
Kiyemba v. Obama (Amicus Brief)
The Brennan Center for Justice, along with a group of other organizations, has submitted three amici briefs in support of the D.C. District Court’s ruling that the government must release into the United States a group of Uighurs detained at Guantánamo Bay.
Al Maqaleh v. Gates (Amicus Brief)
The Brennan Center for Justice and co-counsel submitted an amicus brief on behalf of retired military officers, urging the D.C. Circuit Court of Appeals to affirm the District Court’s decision to grant habeas review to three non-Afghan citizens apprehended outside Afghanistan and detained at Bagram Theater Internment Facility.
Iguanas and the Rule of Law at Guantánamo
It appears iguanas have more rights than detainees at Guantanamo Bay. I traveled to the prison recently to observe the hearing of accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri.
I traveled to Guantánamo Bay to observe the arraignment of accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri.
The U.S. Detention System Since 9/11: A Conversation
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus. This is the final installment in a three-part series.
Illustrations by Risko
Human Rights Groups Challenge Government Secrecy on Waterboarding
Today, the Brennan Center for Justice and nine other human rights organizations urged an appeals court to overturn a decision allowing the government to keep information about its use of waterboarding secret.
After Supreme Court Rejects State Secrets Case, Groups Urge DOJ to Implement Oversight Policy
Today, the Brennan Center for Justice urged the Department of Justice (DOJ) to implement the state secrets policy it announced on September 23, 2009.
Bermuda Accepts Detainees as U.S. Starts Dismantling Guantanamo
The Brennan Center welcomes the Burmudan government’s decision to resettle four Guantánamo Uighurs.
Letter to AG Holder Regarding Terrorist Suspects and the Miranda Warning
We urge Attorney General Holder to reconsider his call for Congressional action to expand the public safety exception to the use of the Miranda Warning.
Emily Berman’s Statement for the Record for Hearing on Torture and the Office of Legal Counsel
Emily Berman submitted a Statement for the Record regarding the most troubling legal deficiencies in the three May 2005 memoranda issued by the Justice Department’s Office of Legal Counsel to the Senate Judiciary Subcommittee on Administrative Oversight and the Courts.
Frederick A.O. Schwarz Jr. Before Hearing on “Truth Commission”
Testimony in support of a nonpartisan, independent commission of inquiry. Delivered before Senator Leahy’s hearing, “Getting to the Truth Through a Nonpartisan Commission of Inquiry”
President Obama: It’s Not Too Late to Reject Bad Detainee Law
Congress enacted legislation intended to militarize the handling of terrorist suspects and limit the president’s options for prosecuting or releasing them. The bill represents a major setback for both human rights and national security, and President Obama should veto it.
They Have Undermined Our Historical Commitment to Human Rights
The "war on terror" has brought fundamental changes to America's place in the world, our international priorities and our system of laws. Although people may disagree about whether the past decade's changes have made us safer, there is no doubt they have undermined our historical commitment to human rights.
Letter to Attorney General Holder on the Justice Department’s State Secrets Policy
The Brennan Center for Justice sent the following letter to the Department of Justice asking it to implement the state secrets policy it announced on September 23, 2009. The Brennan Center initially sent a letter on December 15, 2010, but after five months the DOJ has neither responded to nor acknowledged receipt of the letter.