June 12—In Boumediene v. Bush, the Court ruled that the 275 people in US custody in Guantanamo Bay Cuba have a constitutional right to challenge their detention in court. The opinion gives the detainees—some of whom have been held for six years—an opportunity to a fair hearing in a Federal District Court. More generally the decision affirms the notion that the President can not, even in times of terror, rise above the law, and detain people indefinitely and without fair process.
In the joined cases of Munaf and Omar, the Court unanimously affirmed the right of Americans to assert habeas corpus regardless of where they are imprisoned. These cases involved two American citizens detained by the US in Iraq; each presented evidence that indicating he would be tortured, and probably killed, if turned over to Iraqi government.
“This may be a great day for habeas corpus. But it is not a great day for our clients—or American citizens,” said Aziz Huq, Director of the Liberty and National Security Program at the Brennan Center for Justice who represents the petitioners. “Our clients are now at grave risk of being sent to death.”
“Americans—and all others—should have right to challenge transfer that involves risk of torture,” said Jonathan Hafetz an attorney at the Brennan Center for Justice who filed an amicus brief in the Boumediene case. "We’re disappointed that under the facts presented in this case, the Court ruled transfer, even transfer likely to result in death, might be permissible without challenge.
The Brennan Center attorneys noted that in its opinion in Munaf, the Court underscored the seriousness of the risk of torture and emphasized the obligation of the political branches of government to ensure that no citizen is tortured.
“In Munaf the Court made it plain: decisions respecting whether or not the US will transfer a citizen to torture is not a matter of executive discretion, but is subject to judicial check,” said Mr. Huq. He added that this aspect of the opinion points forward towards a new US detention policy in the post Bush era, one that is consistent with the rule of law.
Mr. Huq and Hafetz are available for comment or discussion about the cases and related issues.
To schedule an interview, please contact Susan Lehman, Director of Communications, Brennan Center for Justice, 212.998.6318, firstname.lastname@example.org