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Docket: Habib v. Bush

Opinions and Documents


This is one of two habeas corpus petitions that CCR filed challenging the U.S. government�s practice of holding foreign nationals captured in connection with its war on Afghanistan and the al-Quaida in indefinite detention, without counsel and without the right to charges or a trial. The case was heard together with Rasul v. Bush in the U.S. Supreme Court on April 20, 2004. On June 28, 2004, the Court ruled 6-3 in CCR's favor that the detainees have the right to challenge their detention in United States courts.

Description & Status

On June 10, 2002, CCR attorneys together with associated counsel filed a petition seeking a writ of habeas corpus in United States District Court in Washington, D.C. seeking the release of Mamdouh Habib, an Australian citizen being detained in Camp Delta in Guantanamo Bay. The lawsuit exposes a frightening example of abuse of power and spotlights the executive's continued use of the tragic events of September 11 to trample basic constitutional rights.

The facts presented in the petition are compelling. Mr. Habib is a civilian who was never a combatant, an enemy alien, a member of the Taliban government, a member of Al Qaida or a member of any other terrorist group. He never caused or attempted to cause any harm to American personnel or property. In August 2001, Habib traveled from Australia to Pakistan to look for employment and for a school for his two teenage children. On October 5, shortly before he was due to return to his family in Australia, Mr. Habib was arrested in Pakistan and detained virtually incommunicado by Pakistani authorities. marked the first day of armed conflict between the United States and the Taliban government and Al Qaida armed forces. Habib's apprehension by Pakistani authorities took place before October 7, 2001, the date the U.S. first launched its aerial bombing campaign against military installations within Afghanistan and well before any American personnel were engaged in fighting. Later in October, Habib was transported from Pakistan to Egypt where he was detained by Egyptian authorities. On April 18, 2002 the Australian government notified Habib's wife that her husband had been handed over by the Egyptian authorities to the U.S. military by whom he was transported to Afghanistan. This was the first occasion on which Habib had been to Afghanistan. On May 6, 2002, the Australian government issued a press release stating that the United States had transferred Habib to its detention facility at Guantanamo Bay, Cuba.

During the period of his custody by the U.S. military, Habib has been held virtually incommunicado. He has not been notified of any pending or contemplated charges. He has made no appearance before either a military or civilian tribunal of any sort, nor has he been provided counsel or the means to contact counsel. He has not been informed of his rights under the United States Constitution, the regulations of the United States Military, the Geneva Conventions, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, or Customary International Law. In fact, the Bush Administration has taken the position that he should not be told of these rights.

The petition filed by CCR alleges that the prolonged detention of Habib under a military order, under the President's authority as commander in chief or under the laws of war violates the fifth and fourteenth amendments to the constitution and the war powers clause and that it constitutes an illegal suspension of the writ of habeas corpus. The lawsuit also asserts that the detention is a violation of various international laws.

On July 31, 2002, the district court dismissed the petition, finding that a petition for habeas corpus is not available for non-U.S. citizens detained outside of United States jurisdiction. CCR has appealed on behalf of the petitioners (in this case and the similar case of Rasul v. Bush), arguing that it is a violation of law for the U.S. government to imprison human beings for prolonged, indefinite periods by executive officers, acting on secret information, with no judicial review whatsoever. The appeal distinguished the instant case from military detentions of foreign nationals in combat zones or in territory under the jurisdiction of a foreign sovereign. The argument explained that it was unnecessary for the appeal whether American courts ever have habeas corpus jurisdiction over aliens outside United States sovereign territory. CCR raised the narrow question of whether the district court has jurisdiction to review an executive detention by the military, acting solely under purported Presidential authority and on the basis of secret information, with no judicial supervision whatsoever, of citizens of friendly foreign nations who have not engaged in combat against the United States or committed other hostile acts against the United States, who are subjected to prolonged imprisonment for an indefinite period, on territory far removed from any combat zone, and which is under exclusive American jurisdiction and effective control, on which no foreign government has jurisdiction and in which no foreign court can intervene. CCR contends that if the United States courts do not have jurisdiction to review the executive detentions at Guantanamo, then no court has jurisdiction to review them. That would mean that the U.S. could act lawlessly with respect to its conduct. CCR argued that under American constitutional tradition and international law, courts must be able to review the lawfulness of these executive detentions.

On March 11, 2003, The D.C. Circuit rejected the appeal. The Court ignored the fact that the detainees have not been declared "enemies" of the United States by any lawful international or domestic tribunal and are therefore languishing in U.S. military captivity without any legal basis. Approving the power of the President to act lawlessly in these matters, the Circuit concluded that the consequence of its interpretation of the law "is that no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. �2241, to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States."

Michael Ratner reacted with shock at the appeals court ruling. He stated, "The right to test the lawfulness of one's detention is a foundation of liberty that has roots going back to the Magna Carta. The U.S. is not only denying the detainees fundamental rights, but is jeopardizing any claim that it is a country ruled by law. I fear for the rights of all of us. The court's ruling, that the U.S. constitution does not run to those jailed in territory over which the U.S. has 'complete jurisdiction and control,' is utterly erroneous. Every detained person has a right to his day in court."

Ultimately the case was joined with Rasul v. Bush, which lost on appeal but in a landmark 6-3 decision, the U.S. Supreme Court ruled that Guantanamo detainees have access to United States courts to challenge their detention.

CCR Legal Team - William Goodman and Columbia Human Rights Intern Irene Baghoomians, with Cooperating Attorney and CCR President Michael Ratner and Cooperating Attorney Joseph Margulies