Three Law School scholars take up legal battle to challenge Bush detention policy

Three faculty members in the Law School are playing significant roles in the first and only court case taken by the Supreme Court that legally challenges the Bush administration’s policy of indefinite detention of foreign “enemy combatants” at the Guantanamo Bay Naval Base in Cuba.

Joseph Margulies, Visiting Lecturer and Trial Attorney in the Law School’s MacArthur Justice Center, was part of the legal team that made oral arguments before the Supreme Court Tuesday, April 20, in the consolidated cases Rasul et al. v. Bush and Al Odah et al. v. United States, and he is one of the lead counsels.

The petitioners, all foreign nationals, are among the approximately 700 prisoners being held at Guantanamo by the U.S. military as part of the war on terror. The MacArthur Justice Center is one of the Law School’s clinics, and the clinic staff and students have assisted Margulies in his work on these cases.

“The executive branch has disclosed little information regarding the detainees,” Margulies said. “It has not indicated what they are believed to have done to justify their seizure or their continued detention, and it does not report on their current welfare.”

The Supreme Court agreed to decide whether these prisoners may challenge the lawfulness of their continued detention in federal court.

These consolidated cases raise the unprecedented question: Does the executive branch have the authority to act without any check or balance from the legislative or judicial branch in deciding that a citizen of a friendly country can, in the absence of a declared war or emergency, be incarcerated forever without access to any court anywhere in the world?

Abner Mikva, Senior Director of the Mandel Legal Aid Clinic and Lecturer in the Law School, was among a group of former federal appellate court judges who filed an amicus curiae (friend of the court) brief in the Rasul and Al Odah cases.

The retired jurists urged the Supreme Court to review the decision of the U.S. Court of Appeals for the District of Columbia Circuit, which upheld a lower court decision denying the Guantanamo prisoners judicial review of their indefinite incarceration. Mikva and his colleagues argued that “while the process due will vary with the circumstance, in no event may the government claim the unfettered power to imprison people indefinitely—that is, unless that power is checked by affording the prisoner the correlative right to the rule of law.”

Mikva is one of a small group in the nation’s history to have served in high positions in all three branches of the federal government: as a five-term U.S. Congressman; as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit; and as White House Counsel.

Geoffrey Stone, the Harry Kalven, Jr. Distinguished Service Professor in the Law School, was one of the counsels on another of the numerous amicus curiae briefs filed in the Rasul and Al Odah cases. Stone filed the brief on behalf of Fred Korematsu, who was arrested and convicted for defying the U.S. government’s World War II internment order of Japanese-Americans. Korematsu was vindicated years later when the decision was overturned. Stone is the author of a major study of civil liberties in wartime, Perilous Times: Free Speech in Wartime, which WW Norton & Company will publish in November.

Stone, his former colleague Stephen Schulhofer, now at New York University, and three other attorneys argued in the Korematsu brief, from which the following is quoted: “It is no doubt essential in some circumstances to modify ordinary safeguards to meet the exigencies of war. But history teaches that we tend to sacrifice civil liberties too quickly based on claims of military necessity and national security, only to discover later that those claims were overstated from the start.”

Stone also has joined a friend-of-the-court brief in the Jose Padilla case, also before the Supreme Court, which questions whether the government may seize an American citizen on American soil, declare him an “enemy combatant” and detain him indefinitely, without access to counsel or any judicial review of the legality of his detention.