Guantánamo Amicus Brief
Hughes Hubbard filed an amicus curiae brief with the U.S. Supreme Court on behalf of a coalition of Canadian parliamentarians and law professors in consolidated appeals by military detainees at Guantánamo Bay.
The petitioners in the cases assert the right to petition for a writ of habeas corpus under the Suspension Clause of the U.S. Constitution. In particular, they challenge the constitutionality of the Military Commissions Act of 2006, which denies alien detainees the right to challenge promptly their detention before a civil court. One of the detainees affected, Omar Khadr, is a Canadian citizen who has been held at Guantánamo Bay since 2002 when he was only 15 years old. Khadr presently is in proceedings before the U.S. Military Commission.
The Canadian lawmakers and law professors who lent their names to the brief expressed a strong interest in promoting a consistent application of international law by allied nations, including the U.S., and in assuring treatment of Canadian citizens that meets internationally recognized standards. The brief argues U.S. constitutional obligations toward alien detainees should be construed in a manner consistent with international legal standards. The brief also argues that the Military Commissions Act violates international law by restricting non-citizen detainees’ meaningful access to any independent and impartial tribunal to challenge their detention.
Thirty-one parliamentarians -- including two former Ministers of Justice and Attorneys General, a former Solicitor General, and former Ministers of Foreign Affairs and National Defence -- and sixty-one professors signed on to the brief supporting the detainees’ right to challenge their confinement. As one parliamentarian noted in signing on to the brief, these cases raise “fundamental legal questions of due process, equality before the law, the application of international law to domestic law, the unfairness of the Guantánamo process, the problems of arbitrary and indefinite detention, the conditions of confinement, the status of child soldiers, and the like.” Another parliamentarian expressed “[c]ongratulations for drafting a well-reasoned document and I am proud to be associated with it.”
The brief has received significant press coverage in Canada. CBC News, the Globe and Mail, and the Toronto Star featured articles on it and quoted the academics who signed on. The CBC news radio program “The Current” began with an interview of Professor Craig Forcese, a Hughes Hubbard alum who also appeared on the brief, about the cases and arguments in the brief.
Bill Stein and Scott Christensen drafted the brief with Hughes Hubbard alum Professor Craig Forcese of the University of Ottawa. They were assisted by Sarah Cave, Kathleen Fones, Anton Skuratovskyy, and summer associate Corrine Lane.