Al Odah v. United States
Encyclopedia
Al Odah v. United States is a court case filed by the Center for Constitutional Rights
and co-counsels challenging the legality of the continued detention, without charge, of Guantanamo detainees. The case is in many ways a continuation of the landmark Center for Constitutional Rights
case Rasul v. Bush
, which was decided by the Supreme Court
in 2004. That decision determined that D.C. courts are available to Guantanamo detainees as a venue for habeas corpus
petitions. Since that decision, Congress during the Bush administration has passed legislation that has interfered with the ability of detainees to contest their detentions, a procedure provided for in Rasul. The current Al Odah case challenges these obstacles. Like Rasul, Al Odah is an umbrella effort, incorporating sixteen habeas corpus petitions. Consolidated with Boumediene v. Bush
, it was heard by the Supreme Court
on December 5, 2007, and was one of the most anticipated cases before the Court in its term.
The decision, striking down the Military Commissions Act, was handed down on 12 June 2008.
and co-counsel in April 2002 on behalf of twelve imprisoned Kuwaitis, including Fawzi Al Odah
, seeking the right of habeas corpus
. A government motion to dismiss the petition was granted on July 30, 2002 by Judge Colleen Kollar-Kotelly of the U.S. District Court
for the District of Columbia. The Center for Constitutional Rights
appealed the case, which had been consolidated with the other two leading habeas corpus petitions, Rasul v. Bush
and Habib v. Bush. On March 11, 2003, the D.C. Circuit Court of Appeals once more dismissed the case.
On November 10, 2003, the Supreme Court granted certiorari
to the three leading habeas petitions, consolidated under the name Rasul v. Bush. On June 28, 2004, the Supreme Court issued a landmark decision on the subject of Guantanamo detainees. In Rasul v. Bush, the Court determined that with respect to Guantanamo, the right to habeas corpus does not depend on citizenship. This decision affirmed the jurisdiction of the U.S. court system over Guantanamo cases, giving the prisoners detained there a right to challenge their detention in federal courts. Following this decision, the habeas petitions were remanded to lower courts.
On July 7, 2004, the government established Combatant Status Review Tribunal
s (CSRT’s), military courts created as a substitute for judicial process in U.S. courts. The U.S. government has consistently asserted that the detainees at Guantanamo do not have the right to due process
and established the CSRT process as an alternative to establish the guilt or innocence of detainees. Following the establishment of these tribunals, the government filed motions to dismiss pending habeas corpus cases, including Al Odah, on the basis that the cases should be heard by the CSRT system. D.C. District Court Judge Richard J. Leon
dismissed two cases assigned to him on this basis on January 19, 2005. Days later, on January 31, Judge Joyce H. Green ruled that detainees are entitled to constitutional protections, and that the CSRT system is inadequate to the task.
On December 30, 2005, Congress Passed the Detainee Treatment Act
(DTA). The DTA removed Guantanamo habeas corpus cases from the jurisdiction of the D.C. circuit courts and gave authority over these cases to the CSRT and military commission system. In January 2006, government lawyers moved to dismiss pending habeas cases, arguing that the DTA should be applied retroactively. The affected cases included Al Odah and Boumediene at the circuit court level, and Hamdan v. Rumsfeld
at the level of the Supreme Court. On June 29 2006, the Supreme Court ruled in Hamdan that the DTA cannot be applied retroactively, and that the military commissions created by a 2001 executive order violate both military law and the Geneva conventions
. The Supreme Court decision made it possible for Al Odah to continue in the U.S. court system, as opposed to the military court system.
In response to the Hamdan ruling, the Military Commissions Act
(MCA) was passed on October 17, 2006. The MCA described the CSRT review process as a substitute for habeas proceedings in U.S. courts and removed judicial review of claims challenging detention by non-citizens determined by their CSRT’s to be enemy combatants or awaiting such determination. On February 20, 2007, the D.C. Court of Appeals ruled that the Boumediene and Al Odah plaintiffs, as non-citizens, were not entitled to habeas review due to the passage of the Military Commissions Act.
The Center for Constitutional Rights
and its co-counsel appealed the consolidated cases to the Supreme Court. Initially, the Court refused to hear the case, advising attorneys and plaintiffs to first exhaust the review process set up by the DTA. Less than two months later, however, in its first reversal in sixty years, the Supreme Court agreed to hear the consolidated Al Odah and Boumediene cases during the 2007-2008 term.
It has been speculated that a widely publicized insider condemnation of the CSRT system motivated the court's reversal. Lt. Col Stephen Abraham, an attorney and military reservist publicly described the CSRT system as deeply flawed, saying that it relies on evidence that would not be permissible in a court of law and that it is designed to return a guilty verdict. Abraham submitted his affidavit to the Supreme Court on June 22, 2007, just days before the Court reversed its decision and added the Al Odah case to their 2007-2008 docket. Referring specifically to the Al Odah CSRT hearings, in which he participated, Abraham stated that, "What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence."
The Supreme Court heard oral arguments on the case on December 5, 2007 as demonstrators in detainee-like orange jumpsuits and black hoods assembled outside the building. The day in court was widely reported in the United States and international media.
In their brief, the government respondents argue that the Military Commissions Act eliminated federal court jurisdiction over Guantanamo habeas petitions. In addition, the respondents’ legal team submits that the Military Commissions Act does not violate the suspension clause and that the plaintiffs should exhaust the review system set up by the DTA before challenging its legitimacy.
describes Al Odah as "one of the highest-profile cases the Supreme Court will hear this year." The IPS reports that "the decision of the nine justices" on the Al Odah case "could bring the entire administration's detention policy down in flames -- or not." The New York Times
Editorial Board addressed the case in their October 23 editorial, "The Supreme Court Showdown of the Year." The Times expressed its belief that "it is important for the Supreme Court to make clear that the detainees have a constitutional right to have a judge determine whether they are being properly held.” The Village Voice wrote on November 6 that "we will know by the end of the court's term next year whether this Supreme Court...will continue to enforce the essential American principle that none of us is above the law—not even the person who strides to the music of 'Hail to the Chief.'"
The New York Times previewed the December 5, 2007 oral arguments, saying that what is at stake in the case "is whether the Supreme Court itself will continue to have a role in defining the balance [of liberty versus security] or whether, as the administration first argued four years ago, the executive branch is to have the final word".
mandated that Guantanamo captives were no longer entitled to access the US civil justice system, so all outstanding habeas corpus petitions were stayed.
, that the Military Commissions Act
could not remove the right for Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated.
On July 18, 2008 David J. Cynamon filed a "PETITIONERS’ STATUS REPORT" in Al Odah, v. United States Civil Action No. CV 02-0828 (CKK) on behalf of Fawzi Khalid Abdullah Fahad Al Odah, Fayiz Mohammed Ahmen Al Kandari, Khalid Abdullah Mishal Al Mutairi, Fouad Mahmoud Al Rabiah.
He wrote that they were the four remaining Kuwaiti captives in Guantanamo.
He wrote that none of the four men had been cleared for release.
He wrote that the government had completed "factual returns" for all four men -- but those factual returns had contained redacted sections.
On 12 December 2008 DoJ official
John Battaglia filed a "NOTICE OF SERVICE OF UNCLASSIFIED, PROTECTED FACTUAL RETURN" with regard to Faez Mohammed Ahmed al-Kandari (ISN 552) in Civil Action No. 02-CV-0828 (CKK).
Battaglia sought to have the unclassified factual return designated as "protected information". He added: "Respondents, however, do not object to petitioner’s counsel sharing the unclassified factual return with the petitioner-detainee in this case."
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
and co-counsels challenging the legality of the continued detention, without charge, of Guantanamo detainees. The case is in many ways a continuation of the landmark Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
case Rasul v. Bush
Rasul v. Bush
Rasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
, which was decided by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in 2004. That decision determined that D.C. courts are available to Guantanamo detainees as a venue for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petitions. Since that decision, Congress during the Bush administration has passed legislation that has interfered with the ability of detainees to contest their detentions, a procedure provided for in Rasul. The current Al Odah case challenges these obstacles. Like Rasul, Al Odah is an umbrella effort, incorporating sixteen habeas corpus petitions. Consolidated with Boumediene v. Bush
Boumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
, it was heard by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
on December 5, 2007, and was one of the most anticipated cases before the Court in its term.
The decision, striking down the Military Commissions Act, was handed down on 12 June 2008.
Case History
Al Odah v. United States was originally filed by the Center for Constitutional RightsCenter for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
and co-counsel in April 2002 on behalf of twelve imprisoned Kuwaitis, including Fawzi Al Odah
Fouzi Khalid Abdullah Al Awda
Fouzi Khalid Abdullah al Awda is a Kuwaiti citizen held in the United States Guantanamo Bay detainment camps, in Cuba.He has been detained without charge in Guantanamo Bay since 2002....
, seeking the right of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. A government motion to dismiss the petition was granted on July 30, 2002 by Judge Colleen Kollar-Kotelly of the U.S. District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
for the District of Columbia. The Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
appealed the case, which had been consolidated with the other two leading habeas corpus petitions, Rasul v. Bush
Rasul v. Bush
Rasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
and Habib v. Bush. On March 11, 2003, the D.C. Circuit Court of Appeals once more dismissed the case.
On November 10, 2003, the Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the three leading habeas petitions, consolidated under the name Rasul v. Bush. On June 28, 2004, the Supreme Court issued a landmark decision on the subject of Guantanamo detainees. In Rasul v. Bush, the Court determined that with respect to Guantanamo, the right to habeas corpus does not depend on citizenship. This decision affirmed the jurisdiction of the U.S. court system over Guantanamo cases, giving the prisoners detained there a right to challenge their detention in federal courts. Following this decision, the habeas petitions were remanded to lower courts.
On July 7, 2004, the government established Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s (CSRT’s), military courts created as a substitute for judicial process in U.S. courts. The U.S. government has consistently asserted that the detainees at Guantanamo do not have the right to due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
and established the CSRT process as an alternative to establish the guilt or innocence of detainees. Following the establishment of these tribunals, the government filed motions to dismiss pending habeas corpus cases, including Al Odah, on the basis that the cases should be heard by the CSRT system. D.C. District Court Judge Richard J. Leon
Richard J. Leon
Richard J. Leon is an American lawyer and current federal judge. He has served as a judge of the United States District Court for the District of Columbia since 2002.-Early life and education:Leon was born in South Natick, Massachusetts...
dismissed two cases assigned to him on this basis on January 19, 2005. Days later, on January 31, Judge Joyce H. Green ruled that detainees are entitled to constitutional protections, and that the CSRT system is inadequate to the task.
On December 30, 2005, Congress Passed the Detainee Treatment Act
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
(DTA). The DTA removed Guantanamo habeas corpus cases from the jurisdiction of the D.C. circuit courts and gave authority over these cases to the CSRT and military commission system. In January 2006, government lawyers moved to dismiss pending habeas cases, arguing that the DTA should be applied retroactively. The affected cases included Al Odah and Boumediene at the circuit court level, and Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
at the level of the Supreme Court. On June 29 2006, the Supreme Court ruled in Hamdan that the DTA cannot be applied retroactively, and that the military commissions created by a 2001 executive order violate both military law and the Geneva conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. The Supreme Court decision made it possible for Al Odah to continue in the U.S. court system, as opposed to the military court system.
In response to the Hamdan ruling, the Military Commissions Act
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
(MCA) was passed on October 17, 2006. The MCA described the CSRT review process as a substitute for habeas proceedings in U.S. courts and removed judicial review of claims challenging detention by non-citizens determined by their CSRT’s to be enemy combatants or awaiting such determination. On February 20, 2007, the D.C. Court of Appeals ruled that the Boumediene and Al Odah plaintiffs, as non-citizens, were not entitled to habeas review due to the passage of the Military Commissions Act.
The Center for Constitutional Rights
Center for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
and its co-counsel appealed the consolidated cases to the Supreme Court. Initially, the Court refused to hear the case, advising attorneys and plaintiffs to first exhaust the review process set up by the DTA. Less than two months later, however, in its first reversal in sixty years, the Supreme Court agreed to hear the consolidated Al Odah and Boumediene cases during the 2007-2008 term.
It has been speculated that a widely publicized insider condemnation of the CSRT system motivated the court's reversal. Lt. Col Stephen Abraham, an attorney and military reservist publicly described the CSRT system as deeply flawed, saying that it relies on evidence that would not be permissible in a court of law and that it is designed to return a guilty verdict. Abraham submitted his affidavit to the Supreme Court on June 22, 2007, just days before the Court reversed its decision and added the Al Odah case to their 2007-2008 docket. Referring specifically to the Al Odah CSRT hearings, in which he participated, Abraham stated that, "What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence."
The Supreme Court heard oral arguments on the case on December 5, 2007 as demonstrators in detainee-like orange jumpsuits and black hoods assembled outside the building. The day in court was widely reported in the United States and international media.
Petitioners' and Respondents' Briefs
The petitioners contextualize their case by characterizing the Guantanamo Bay prison camp as “an international symbol of the Executive branch’s contempt for the rule of law and a deep stain on the reputation of the United States at home and abroad.” The petitioners’ brief argues that the men at Guantanamo are entitled to habeas corpus, and that the Military Commission Act violates the Constitution’s suspension clause. The brief further argues that the military commissions and Combatant Status Review Tribunals do not satisfy the requirements of habeas corpus. The petitioners conclude that detainees should be given a “searching judicial review of the factual and legal bases for their detentions."In their brief, the government respondents argue that the Military Commissions Act eliminated federal court jurisdiction over Guantanamo habeas petitions. In addition, the respondents’ legal team submits that the Military Commissions Act does not violate the suspension clause and that the plaintiffs should exhaust the review system set up by the DTA before challenging its legitimacy.
Al Odah in the News
The Supreme Court hearing of the Al Odah case is widely recognized in the media as a serious test of the Bush administration's policy with regard to Guantanamo and detainee rights. Fox NewsFox News Channel
Fox News Channel , often called Fox News, is a cable and satellite television news channel owned by the Fox Entertainment Group, a subsidiary of News Corporation...
describes Al Odah as "one of the highest-profile cases the Supreme Court will hear this year." The IPS reports that "the decision of the nine justices" on the Al Odah case "could bring the entire administration's detention policy down in flames -- or not." The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
Editorial Board addressed the case in their October 23 editorial, "The Supreme Court Showdown of the Year." The Times expressed its belief that "it is important for the Supreme Court to make clear that the detainees have a constitutional right to have a judge determine whether they are being properly held.” The Village Voice wrote on November 6 that "we will know by the end of the court's term next year whether this Supreme Court...will continue to enforce the essential American principle that none of us is above the law—not even the person who strides to the music of 'Hail to the Chief.'"
The New York Times previewed the December 5, 2007 oral arguments, saying that what is at stake in the case "is whether the Supreme Court itself will continue to have a role in defining the balance [of liberty versus security] or whether, as the administration first argued four years ago, the executive branch is to have the final word".
Captives whose cases were amalgamated with al Odah v. Bush
| 065 | Omar Rajab Amin Omar Rajab Amin -First annual Administrative Review Board:A Summary of Evidence memo was prepared for Omar Rajab Amin's first annual Administrative Review Board, on 17 May 2005.The memo listed factors for and against his continued detention.... |
| 205 | Nasser Nijer Naser Al Mutairi |
| 213 | Khalid Abdullah Mishal Al Mutairi |
| 217 | Abdulaziz Sayer Owain Al Shammari |
| 220 | Abdullah Saleh Ali Al Ajmi |
| 228 | Abdullah Kamal Abdullah Kamal Al Kandari |
| 229 | Mohammed Funaitel Al Dihani |
| 232 | Fawzi Khalid Abdullah Fahad Al Odah |
| 551 | Fwad Mahmoud Al Rabiah |
| 552 | Fayiz Mohammed Ahmed Al Kandari |
| 568 | Adil Zamil Abdull Mohssin Al Zamil Adil Zamil Abdull Mohssin Al Zamil Adel al Zamel is a citizen of Kuwait who was held in extrajudicial detention in the United States Guantanamo Bay detention camps, in Cuba.... |
Military Commissions Act
The Military Commissions Act of 2006Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
mandated that Guantanamo captives were no longer entitled to access the US civil justice system, so all outstanding habeas corpus petitions were stayed.
Boumediene v. Bush
On June 12, 2008 the United States Supreme Court ruled, in Boumediene v. BushBoumediene v. Bush
Boumediene v. Bush, 553 U.S. 723 , was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba...
, that the Military Commissions Act
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
could not remove the right for Guantanamo captives to access the US Federal Court system. And all previous Guantanamo captives' habeas petitions were eligible to be re-instated.
On July 18, 2008 David J. Cynamon filed a "PETITIONERS’ STATUS REPORT" in Al Odah, v. United States Civil Action No. CV 02-0828 (CKK) on behalf of Fawzi Khalid Abdullah Fahad Al Odah, Fayiz Mohammed Ahmen Al Kandari, Khalid Abdullah Mishal Al Mutairi, Fouad Mahmoud Al Rabiah.
He wrote that they were the four remaining Kuwaiti captives in Guantanamo.
He wrote that none of the four men had been cleared for release.
He wrote that the government had completed "factual returns" for all four men -- but those factual returns had contained redacted sections.
On 12 December 2008 DoJ official
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
John Battaglia filed a "NOTICE OF SERVICE OF UNCLASSIFIED, PROTECTED FACTUAL RETURN" with regard to Faez Mohammed Ahmed al-Kandari (ISN 552) in Civil Action No. 02-CV-0828 (CKK).
Battaglia sought to have the unclassified factual return designated as "protected information". He added: "Respondents, however, do not object to petitioner’s counsel sharing the unclassified factual return with the petitioner-detainee in this case."