Legal Brief Filed By Unprecedented Coalition In Guantanamo Detainees’ Case

January 14, 2004
New Haven attorney continues high-profile involvement in groundbreaking cases in war on terror.
An unprecedented array of organizations filed a “friend of the court” brief this morning in the U.S. Supreme Court in Odah v. United States and Rasul v. Bush—the combined cases challenging the federal government’s detention without charge of hundreds of foreign nationals at the U.S. Naval Base at Guantanamo Bay, Cuba.  Organizations from across the political spectrum joined forces to argue that courts must ensure that there is at least some process by which detainees who claim innocence can challenge their detentions. 
“This case asks whether the President has the power to establish an offshore prison where the Constitution and the Geneva Conventions simply do not apply,” said Jonathan Freiman, the lawyer for the organizations.  “The Court should answer that question with an emphatic ‘no.’  Those who claim innocence must always have the chance to prove it.”
Several major faith-based groups joined the brief, including the National Council of Churches, whose Protestant, Anglican and Orthodox member denominations include more than 50 million Americans, and the American Jewish Committee.  They were joined by the world’s most prominent human rights organizations, including the Lawyers Committee for Human Rights, and a host of legal organizations, ranging from the Rutherford Institute, to the American Civil Liberties Union.
The United States has been holding foreign nationals from more than 40 countries at Guantanamo since early 2002, despite vigorous protest from some of America’s closest allies.  Some of the detainees claim they were not involved in hostilities, but none have been given a hearing to determine whether they are innocent civilians.  U.S. courts are the only courts in which detainees could assert their innocence, as the United States exercises “complete jurisdiction and control” over Guantanamo under a perpetual lease signed a century ago with Cuba. 
The brief argues that detainees have the right to challenge their detentions under both the 1949 Geneva Convention Relative to the Treatment of Prisoners of War and the Due Process Clause of the U.S. Constitution.   It also notes that the United States’ closest allies in the war on terror – Israel and the United Kingdom – have both rejected the notion that governments can prevent prisoners from having access to courts merely by holding them outside the country. 
With the brief, Freiman continues his high-profile work in the cases challenging the government’s most aggressive tactics in the war on terror.
An attorney in the national appellate practice at Wiggin and Dana LLP and a Senior Fellow at the Schell Center for International Human Rights at Yale Law School, Freiman submitted an influential friend-of-the-court brief in the case of Padilla v. Rumsfeld, which challenged the government’s power to hold American citizens incommunicado without charge or access to a lawyer.  He also filed a brief on behalf of former American prisoners of war in the case of Hamdi v. Rumsfeld, which the Supreme Court agreed to hear last week. 
Freiman is available for further comment on the Odah, Hamdi, or Padilla cases.