ABA supports Supreme Court review of ‘enemy combatant’

June 2, 2017

A Guantanamo Bay detainee, represented by Indianapolis criminal defense attorney Richard Kammen, has picked up support from the American Bar Association in his challenge to the validity of the military tribunal to try him.

Abd al-Rahim al-Nashiri, a Saudi, has been labeled an “enemy combatant” and held at Guantanamo Bay Naval Base since 2006, charged with leading the attacks on the USS Cole and a French supertanker as well as an attempted bombing of the USS The Sullivans. He has turned to the federal courts, seeking a habeas review of his position that he should be tried in federal court rather than by a military commission because his alleged crimes took place before the United States went to war.  

However, the United States Court of Appeals for the District of Columbia Circuit upheld the decision to reject his petition in In re Al-Nashiri, 835 F.3d 110 (2016).

The ABA filed an amicus brief Thursday in support of al-Nashiri’s petition for a Writ of Certiorari, asking the Supreme Court to review the lower court’s ruling. In arguing the Court of Appeals’ ruling “warrants prompt review,” the ABA asserted the decision will impact all Guantanamo detainees seeking to challenge the military commission’s jurisdiction and will hinder the use of federal habeas review to prevent overreach by the executive branch.

The ABA disputed the appellate court’s reliance on Schlesinger v. Councilman, 420 U.S. 738 (1975).  Although Councilman found that federal habeas review is generally not appropriate before a military proceeding has concluded, the ABA contended Hamdan v. Rumsfeld, 548 U.S. 557 (2006) limited that ruling by holding it is not applicable to habeas petitions of Guantanamo detainees who challenge the legality of the military commissions.

Al-Nashiri has been held captive for 15 years and has been kept in a solitary confinement facility for much of that time. The military commission will not determine whether it has jurisdiction over this case until the trial, which is unlikely to take place before 2019.

“This Court has faithfully held that exceptional delay in juridical proceedings, in both common and capital cases, is incompatible with the Constitution’s due process guarantees,” the ABA argued in its brief. “Consonant with the tradition, this Court should review the Court of Appeals’ decision to confirm that exceptional delay before trial remains of central concern on habeas review and is indeed one of the very dangers the writ of habeas corpus was designed to avoid.”




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