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Docket: Rasul v. Bush

Opinions and Documents


This is one of two habeas corpus petitions that CCR has 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.

Description & Status

On February 19, 2002, CCR attorneys filed a Petition seeking a Writ of Habeas Corpus in the case of Shafiq Rasul, Asif Iqbal, and David Hicks, who are currently being held at Camp X-Ray, Guantanamo Bay, Cuba. Iqbal and Rasul are British and Hicks is Australian. The Petition was filed in the U.S. District Court for the District of Columbia. CCR Vice President Michael Ratner and Legal Director Bill Goodman worked on the petition for CCR along with Cooperating Attorneys Joseph Margulies, a Minneapolis lawyer and a visiting professor at Cornell University Law School, and Anthony DiCaprio, a volunteer CCR attorney. British attorneys Clive Stafford Smith and Gareth Peirce and Australian attorney Stephen Kenny are also on the Petition representing individuals.

The petitioners have been held incommunicado since being taken into U.S. custody December 17, 2001. Despite regular interrogation by U.S. agents, they have not been charged with an offense, notified of any pending charges, made any appearances before either a military or civilian tribunal, informed of their rights under domestic or international law or provided counsel or the means to contact counsel.

The Petition challenges the Presidential Executive Order of November 13, 2001, which authorized indefinite detention without due process of law, as unconstitutional and a violation of international law.

The core contention of the litigation is that the United States cannot order indefinite detention without due process. The detainees have the right to challenge the legality of their detention in court. To make that challenge meaningful, they have the right to be informed of the charges they face, and the right to present evidence on their own behalf and to cross-examine their accusers.

Joseph Margulies explained that the failure by the Bush Administration to provide these protections raises serious questions about their commitment to the Constitution and international law. "We distinguish ourselves from terrorists only by our commitment to the rule of law, and the law is perfectly clear that the President can't order a person locked up indefinitely, without legal process. Unless the U.S. says the law is simply a matter of convenience, something we are free to ignore whenever and wherever we choose, we have to change what we're doing in Cuba," said Margulies. Michael Ratner added: "This case tests our resolve to stand by our democratic system. We undermine our own authority to demand due process for Americans who come in harm 's way abroad if we continually flaunt due process and the rule of law when we choose."

"The U.S. Government is continually criticizing Fidel Castro for failing to respect basic due process, and yet transports these prisoners to a U.S. base on Cuba in an effort to deprive them of any rights," said British capital defense attorney Clive Stafford Smith. "That is pure hypocrisy. Surely, especially where the death penalty is at stake, we are not afraid to tell people what they are charged with, and allow them access to a lawyer."

Bill Goodman put the current action in its historic, constitutional context. "From the abuses of the Alien and Sedition Acts to Haymarket Square to the Palmer Raids to the McCarthy period, fears of foreigners and of real and imagined dangers, have fueled attempts to do unreasonable and unnecessary harm to the Bill of Rights. For that reason, we are participating in this attempt to require the President of the United States to articulate a sound legal basis for holding these prisoners."

The government filed a major motion to dismiss the Petition claiming, among other arguments, that the "detention" is not based upon military orders, but on the President's common law war powers. The government also claimed that the matter is a political question not justiciable by the courts. On August 7, 2002, the district court dismissed the petition, adopting the ruling in Habib v. Bush that a petition for habeas corpus is not available for non-U.S. citizens detained outside of United States jurisdiction.

CCR appealed to the Court of Appeals for the D.C. Circuit, arguing 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."

On September 2, 2003, CCR filed a petition for certiorari in the United States Supreme Court seeking review of the lower court decisions. A remarkable array of individuals and organizations have filed amicus (friend of the court) briefs in support of the petition, including including Fred Korematsu, former American prisoners of war, former retired military officers, former federal judges, former members of the United States diplomatic services, the Human Rights Institute of the International Bar Association and the Commonwealth Lawyers Association.

On November 10, 2003, the Supreme Court granted certiorari in Rasul v. Bush. This means that the country's highest court agreed to review the decisions of the lower courts that U.S. courts have no jurisdiction over our clients' claims of indefinite detention. Our written argument was filed on January 14, 2004.

On April 20, 2004, Rasul v. Bush was argued before the Supreme Court of the United States.

On June 28, 2004, the Supreme Court ruled 6-3 in favor of CCR's suit and declared that the Guantanamo detainees have access to United States courts to challenge their detention.

For a full background on the case see

CCR Legal Team - Barbara Olshansky, Steven Macpherson Watt, Shane Kadidal, Irene Baghoomians, with Cooperating Attorney and CCR President Michael Ratner and Cooperating Attorney and Lead Counsel Joseph Margulies.