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ABA brief seeks due process rights for Guantanamo detainees

July 12, 2021

The American Bar Association has weighed in on a significant legal and national security issue stemming from the outset of the war in Afghanistan nearly two decades ago: Are Guantanamo Bay detainees entitled to due process rights under the U.S. Constitution?

The ABA filed an amicus brief concerning the due process rights of Guantanamo Bay detainee Abdulsalam Ali Abdulrahman Al-Hela.

The ABA filed an amicus brief concerning the due process rights of Guantanamo Bay detainee Abdulsalam Ali Abdulrahman Al-Hela.

On July 2, the ABA filed an amicus brief with the U.S. Court of Appeals for the District of Columbia Circuit, urging the judges to provide due process rights to Abdulsalam Ali Abdulrahman Al-Hela, a prominent Yemeni businessman and tribal sheikh. Media reports indicate that Al-Hela, who was apprehended in Egypt in 2002 by American forces and transferred to the CIA for interrogation, has been detained at the U.S. site in Cuba since 2004 for allegedly maintaining contact with several known and suspected al-Qaeda affiliates.

His case raises the question of whether nonresident aliens without presence or property in the United States have due process rights under the U.S. Constitution’s Fifth Amendment. In 2008, the U.S. Supreme Court ruled that under the Constitution’s habeas corpus Suspension Clause, nonresident aliens detained at Guantanamo Bay have certain rights, including “a meaningful opportunity” to challenge the basis for their detention. Due process rights mandate that legal proceedings follow rules and principles that have been established in a system of jurisprudence for the enforcement and protection of certain rights, such as a hearing before an impartial judicial officer or the right to an attorney.

The ABA brief said the association’s longstanding interest in the fairness of proceedings that result in detention has led it to consistently oppose prolonged detentions without due process. It also pointed out that the 2008 Supreme Court decision “made clear that Guantanamo should be treated as de facto U.S. territory for purposes of constitutional adjudication.”

“The Constitution’s protection of liberty secures freedom from governmental imprisonment absent adequate justification and fair process,” the brief said. “The Due Process Clause requires the government to provide basic procedural safeguards before depriving an individual of physical liberty in any kind of proceeding — civil or criminal — and particularly before detaining someone for an extended or indefinite period of time. Fundamental fairness demands that those protections extend to persons (whether citizens or not) who have been detained for years at Guantanamo.”

A three-judge panel last year dismissed Al-Hela’s claim. The court sitting en banc will hear the appeal of the case on Sept. 30.

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