National Association of Social Workers

Guantanamo Case Joined

At issue is whether 16 Guantanamo Bay detainees can use U.S. courts to challenge their imprisonment.

By Lyn Stoesen, News Staff

The NASW Legal Defense Fund is among the organizations that have filed a friend-of-the-court brief with the U.S. Supreme Court arguing that foreign nationals being held at the U.S. Naval Base at Guantanamo Bay, Cuba, have a right to challenge the legality of their detention.

The Lawyers Committee for Human Rights filed the brief on Jan. 14, on behalf of a coalition of organizations that includes the NASW Legal Defense Fund.

The Supreme Court in November agreed to review two cases, combined into one, addressing whether 16 detainees being held at Guantanamo Bay have access to U.S. courts to challenge their imprisonment. They have been held without formal charges.

The Supreme Court's review will address a March 2002 decision by the U.S. Court of Appeals for the District of Columbia Circuit. The circuit court agreed with a federal judge's dismissal of the two lawsuits on the grounds that foreign nationals at Guantanamo Bay may not petition courts to review their detention because Guantanamo is not formally U.S. "sovereign" territory. The United States has had jurisdiction over Guantanamo Bay since 1903, when the U.S. and Cuba signed a perpetual lease.

The United States has been holding approximately 660 foreign nationals from 40 different countries at Guantanamo Bay since early 2002.

The amici curiae brief states that "the Court of Appeals did not base its decision on the principle that courts must shy from the battlefield, since the Petitioners were moved far from the fields of war long ago. According to the Court of Appeals the principle is simpler: the Executive can do what it wishes to aliens abroad — even innocent aliens — because no law protects them and no court may hear their pleas. That is a stunning proposition and Amici emphatically reject it."

The brief argues against the Court of Appeals decision on three grounds:

• The brief says the court's interpretation of the writ of habeas corpus is limited. The writ of habeas corpus brings a detained person before a court to determine the legality of that person's imprisonment. The brief states that "the writ of habeas corpus . . . provides a means to challenge Executive detention on the basis of any law of the United States — not just the Constitution."
• The brief argues that "the Constitution does entitle the Guantanamo detainees to due process. . . . [I]t would be perverse to think that the [due process clause] does not protect an alien individual from indefinite detention without any court review at all."
• The brief states that "the Court of Appeals construction of both the habeas statute and the Due Process Clause flouts the 'values we share with a wider civilization. . . .' Democratic allies around the world that have confronted ongoing terrorist threats, as well as the international treaties that the United States has ratified, provide for judicial review of the legality of Executive detention."

NASW General Counsel Carolyn Polowy said that "this case highlights the admonition expressed in several NASW policy statements to protect the rights of vulnerable people and to condemn policies and practices that put human rights in jeopardy."

NASW Associate Counsel Sherri Morgan added, "The social work profession's concern for the impact of the social environment on the individual encompasses the legal structures that form a civil society. Foundational to those structures is the right to due process."

The Supreme Court combined two lawsuits, Rasul v. Bush and Al Odah v. United States, into a single appeal for the hearing. The Supreme Court will hear oral arguments on the case this spring. A final ruling is expected by July.

In addition to the Lawyers Committee for Human Rights and the NASW Legal Defense Fund, 14 other organizations joined in the brief. Among those organizations are People for the American Way, the Rutherford Institute, Amnesty International, the American Civil Liberties Union and Human Rights Watch.

To read the brief: www.socialworkers.org/ldf/brief_bank/default.asp

From March 2004 NASW News. © 2004 National Association of Social Workers. All rights reserved. NASW News articles may be copied for personal use, but proper notice of copyright and credit to the NASW News must appear on all copies made. This permission does not apply to reproduction for advertising, promotion, resale, or other commercial purposes.