Habeas corpus petitions of Guantanamo Bay detainees

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The detainees at the United States Guantanamo Bay detention camps, in Cuba have had over 200 writs of habeas corpus submitted on their behalf.

The Great Writ[edit]

Main article: Habeas corpus

Habeas corpus is sometimes called "The Great Writ". It is a legal instrument first guaranteed following the signing of the Magna Carta. Its literal meaning is "show the body". Its purpose is to prevent the state from holding prisoners in extrajudicial detention. When a writ of habeas corpus is filed with a court in countries which inherit elements of their judicial system from the English system of Justice the state has to show that there is a legal basis for the captive's detention—usually that they are suspected of having broken a law.

Are Guantanamo detainees eligible for the protections of habeas corpus?[edit]

Initially the Bush Administration asserted that the Guantanamo detainees didn't qualify for any of the rights and protections of detainees held in the USA (in fact, that the detainees didn't qualify for any of the human rights laid down in the Geneva Conventions), because the Guantanamo Bay Naval Base is not on US territory.

This executive branch assertion was challenged before the judicial branch.

Role of the Center for Constitutional Rights[edit]

The Center for Constitutional Rights took a lead role in helping to organize the activities of lawyers willing to offer their services, pro bono, to the Guantanamo detainees.

Submitting writs of habeas corpus was made more difficult at first, because part of the Bush detainee policy was to keep the identity of the Guantanamo captives a secret. A writ has to be submitted by a "next friend". Some of the detainees had family who would have authorized American lawyers to submit writs on their behalf, but they had no way of contacting them. Some of the detainees and their relatives are totally illiterate. Other detainees' families had no idea where they were, had no idea that they were in Guantanamo. Some of the detainees reported that they were punished for asking for legal assistance.

Rasul v. Bush[edit]

In the summer of 2004 the United States Supreme Court ruled on the habeas corpus submission Rasul v. Bush, determining that the court had jurisdiction over Guantanamo, and that detainees had a right to an impartial tribunal to challenge their detention under habeas corpus. It was a landmark decision in detainee rights. A related decision was Hamdi v. Rumsfeld (2004), which ruled that United States citizens detained as suspected enemy combatants had the right to habeas corpus challenge of their detention.

Detainee Treatment Act of 2005[edit]

The Detainee Treatment Act of 2005 prohibited US military and intelligence personnel from treating detainees in ways inconsistent with Armed Forces regulations. But it also restricted Guantanamo detainees from filing new writs of habeas corpus. Additionally, the act did not close off the habeas corpus submission that were already in the works.

Hamdan v. Rumsfeld[edit]

In Hamdan v. Rumsfeld (2006), the Supreme Court ruled that the Bush Presidency lacked the Constitutional authority to create the Guantanamo military commissions as a system separate from the existing federal and military justice systems, and ruled that the CSRTs and military commissions were unconstitutional. It said that only Congress could authorize such a system.

Military Commissions Act of 2006[edit]

In addition to authorizing military commissions similar to those the Supreme Court overturned the Military Commissions Act of 2006 was intended to close off all the remaining writs of habeas corpus.

The Supreme Court and the Military Commissions Act[edit]

On June 29, 2007 the Supreme Court agreed to hear outstanding habeas corpus, opening up the possibility that they might overturn some or all of the Military Commissions Act.[1]

The Supreme Court rules on Boumediene v. Bush[edit]

On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that the Guantanamo detainees were entitled to the protection of the United States Constitution.[2][3][4][5] Justice Anthony Kennedy, writing for the majority, described the CSR Tribunals as "inadequate", and wrote:

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Lists of habeas petitions filed on behalf of detainees[edit]

More than 200 detainees have had habeas petitions files on their behalf.

The proposed Habeas Corpus Restoration Act of 2007[edit]

Senators Patrick Leahy and Arlen Specter have proposed Habeas Corpus Restoration Act of 2007, to restore access to habeas corpus to the Guantanamo detainees.[6] Debate began on the bill on September 17, 2007. It has been attached, as an amendment, to a Defense bill.

Boumediene v. Bush[edit]

On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. Bush, that detainees had the right to access the US judicial system, and that those aspects of the Detainee Treatment Act and Military Commissions Act of 2006 that restricted them to the system at Guantanamo was unconstitutional.[7][8] As a result, many habeas corpus cases that had been stayed after passage of the MCA were refiled.



  1. ^ Jeannie Shawl (June 29, 2007). "Supreme Court to hear Guantanamo Bay detainee habeas cases". The Jurist. Retrieved 2007-06-29. 
  2. ^ Mark Sherman (June 12, 2008). "High Court: Gitmo detainees have rights in court". Associated Press. Retrieved 2008-06-12. The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.  mirror
  3. ^ Mark Sherman (June 12, 2008). "Terror suspects can challenge detention: U.S. Supreme Court". Globe and Mail. Retrieved 2008-06-12. 
  4. ^ Mark Sherman (June 12, 2008). "High Court sides with Guantanamo detainees again". Montorey Herald. Retrieved 2008-06-12. 
  5. ^ James Oliphant (June 12, 2008). "Court backs Gitmo detainees". Baltimore Sun. Retrieved 2008-06-12.  mirror
  6. ^ "Justice for Detainees: Congress can right a wrong in the war on terrorism". Washington Post. September 18, 2007. p. A18. Retrieved 2007-09-18. 
  7. ^ "One year on, Guantanamo cases stall in courts". Agence France Presse. 2009-06-13. Retrieved 2009-06-13. 
  8. ^ Lyle Denniston (2009-06-12). "Analysis: Habeas, one year later". Scotusblog. Archived from the original on 2009-06-15. Retrieved 2009-06-13. 
  9. ^ Peter Finn, Sandhya Somashekhar (2009-06-11). "Obama Bows on Settling Detainees: Administration Gives Up on Bringing Cleared Inmates to U.S., Officials Say". Washington Post. Retrieved 2009-06-13. 

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