Spring 2004

ABA Files Section-sponsored Amicus Brief in Enemy Combatant Case

The ABA has filed a Section-sponsored amicus curiae brief with the U.S. Supreme Court in Hamdi v. Rumsfeld, in which the Court will decide whether the federal government may detain indefinitely an American citizen captured as an "enemy combatant" in another country during a time of hostilities.

Captured in Afghanistan in the course of U.S. military action there following the Sept. 11, 2001, terrorist attacks, Yaser Esam Hamdi first was sent to Guantanamo Bay, Cuba, until it was discovered that he was born in Louisiana. He now remains in military custody at the Norfolk Naval Station Brig in Norfolk, Va., where he is being held as an "enemy combatant." Until February 2004, he had not been allowed to communicate with legal counsel, and access since then has been strictly limited.

In its brief, the ABA argues that it is the role of the federal courts, even in a time of hostilities, to provide meaningful review where American citizens are detained by the federal government. It also argues that fundamental due process requires that American citizens indefinitely detained by the government have access to counsel and the opportunity to challenge the allegations against them, and notes that adequate procedures exist to protect national security interests without depriving citizens their due process rights.

The brief draws upon Section-sponsored policy urging that American citizens detained as "enemy combatants" be given meaningful judicial review and not be denied access to counsel. It also relies on earlier ABA policy supporting the rule of law in the international community and opposing infringements upon the separation of governmental powers as set forth in the U.S. Constitution.

Barry Sullivan, Shelley Malinowski, Robert L. Schultz, and Erinn L. Wehrman of Jenner & Block in Chicago, Ill., and Penny Wakefield drafted the brief.

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