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Summer, 2004

Win in War Powers Battle
Mayer, Brown, Rowe & Maw LLP

In two parallel and politically celebrated cases challenging the Bush Administration's treatment of "enemy combatants" post-9/11, Mayer, Brown, Rowe & Maw LLP filed pro bono amicus briefs with the U.S. Supreme Court, arguing that the government's treatment violates the Geneva Convention and thereby jeopardizes our own troops' welfare as POWs in future wars. On 28 June, the Court issued an opinion agreeing with the positions taken by our briefs.

Guantanamo Detainees
Rasul v. Bush and Al Odah v. U.S. are related cases involving alleged al-Qaeda and Taliban operatives captured in the war in Afghanistan and now detained at the U.S. Naval Base at Guantanamo Bay, Cuba. The Bush Administration has claimed the right, under its war powers, to hold them indefinitely without providing any type of hearing. Jim Schroeder, Gary Isaac, Stephen Kane and Jon Juenger, along with Equal Justice Works fellow Mirna Adjami (see Related Article, "Hard-Earned Idealism"), filed a brief on behalf of three retired general officers: retired Marine Corps Brigadier General David M. Brahms and retired Navy Rear Admirals Donald J. Guter and John D. Hutson.

Ours was one of 18 briefs supporting the petitioners. The brief argued that the administration's position not only shirked the United States' obligation to provide individualized hearings as required by the Geneva Convention and U.S. military regulations, but in so doing, actually endangered U.S. troops in future conflicts where enemy captors could cite American treatment of the Guantanamo detainees as precedent for denying the protections of the Geneva Convention to captured Americans. The brief also argued that the government's rationale for contending that U.S. courts do not have jurisdiction even to consider suits filed by detainees - that Cuba, not the U.S., supposedly is "sovereign" over the base - is seriously flawed. The terms of the 1903 lease for the base and subsequent interpretations by the State Department Solicitor, Navy officials and scholars demonstrate that the United States exercises sovereign powers over the base, which it has the legal right to retain in perpetuity.

An American Taliban
In a separate case - Yaser Esam Hamdi et al. v. Rumsfeld et al. - arguing the same principle, another team of Mayer, Brown, Rowe & Maw LLP lawyers filed a brief on behalf of three former U.S. POWs. The Hamdi case involved American citizen Yaser Esam Hamdi, who allegedly fought as a member of the Taliban and surrendered to the Afghan Northern Alliance in late 2001. He has been held without charges in a South Carolina military brig since that time and was finally given access to counsel only last December.

The brief explicitly took "no position on whether Hamdi has committed acts that warrant treatment as an enemy combatant." It sought merely to reverse the "Fourth Circuit's refusal to allow a U.S. citizen allegedly detained in a war zone the opportunity to challenge before a competent tribunal his exclusion from the protections of the Geneva Convention." The brief asserted that the "Executive Branch appears to have lost sight of both its legal obligations and the long-range interests of our own troops and citizens."

In addition to our own brief, about a dozen others were filed in the Hamdi case, challenging the Administration on various principles of law, particularly the authority of the federal courts to monitor the executive branch's discretion to classify an American citizen as an enemy combatant. Our own brief was written at the request of Human Rights First (formerly the Lawyers Committee for Human Rights) by Philip Lacovara, Andrew Pincus and Andrew Schaefer, who "modeled much of the argument on our 'Guantanamo' brief."

Upholding the Bush Administration
Federal appeals courts had, until the recent decision, upheld the Administration's position in these cases. In Rasul and Al Odah, the D.C. Circuit held that U.S. courts lacked jurisdiction even to consider suits filed by Guantanamo detainees; their indefinite imprisonment could not be challenged in any court. In the Hamdi case, the U.S. Court of Appeals for the Fourth Circuit reasoned that, regardless of citizenship, a person "captured in a zone of active combat" in a foreign country was not guaranteed the right to contest his detention. The court accepted a two-page declaration by a Pentagon official as a "sufficient basis" for concluding that Mr. Hamdi's confinement was within the president's constitutional authority as commander in chief. "No further factual inquiry is necessary or proper," the court declared.

Supreme Court Breaks Its Silence
The cases raised profound constitutional questions - the scope of presidential authority in an unprecedented type of war, the degree of judicial deference to executive branch decisions and basic questions of due process. As both cases approached oral argument in late April, The New York Times commented that "after a lengthy hiatus during which the Supreme Court remained on the sidelines, events are moving quickly toward answering the legal questions raised by the administration's assertive response to the terrorist attacks of 11 September 2001." In her 28 June majority opinion, Justice Sandra Day O'Connor said of the President's war powers: "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." With this ruling Mayer, Brown, Rowe & Maw has so far accepted at least one detainee's case for appeal. More are likely.

Unfolding History
Cases of such magnitude can put one's law career in perspective. Gary Isaac recognizes the work as a chance to address a principle: "I think that what our government is doing here is fundamentally wrong and at odds with our basic principles." Jim Schroeder believes the case gave him a rare "insider's view to unfolding history involving critically important issues." Andrew J. Schaefer, working on Hamdi, expressed the feeling of many lawyers who contribute to such cases: "This is probably some of the most important work I'll do in my career."

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