GUANTÁNAMO BAY DETAINEES
In July of 2004, Professor BAHER AZMY, Clinic Fellow Jessica Yager
and students Alyson Villano, Arthur Owens, Kathleen Hirce, Shuli
Schvartzman, Dana Citron, and Patrick Gilmartin in the Center for
Social Justice began representing Murat Kurnaz, a young Turkish
citizen born and raised in Germany, held by the United States
government at the United States Naval Base at Guantanamo Bay, Cuba,
as an “enemy combatant.” Like a number of other Guantanamo
detainees, Mr. Kurnaz had filed a petition seeking a writ of habeas
corpus in the District Court for the District of Columbia following
the Supreme Court’s ruling in Rasul that detainees have a right to
challenge their detentions via habeas. In October, the Government
filed a motion to dismiss the petitions of all the detainees,
claiming that they could not proceed because the petitioners held no
rights under the United States Constitution, U.S. laws, or
international law that could be vindicated in federal court, i.e.,
that Rasul only authorized federal court jurisdiction, but afforded
no substantive protections whatsoever.
On January 31, 2005, Judge Joyce Hens Green issued an order holding
that the Guantanamo petitioners had stated valid claims under the
Fifth Amendment of the United States Constitution and under the 3rd
Geneva Convention. Judge Green concluded that the petitioners are
entitled to due process and the procedures they have so far been
afforded fall far short of this standard.
Significantly, in adjudicating the motion as it applied to numerous
detainees, Judge Green specifically singles out Mr. Kurnaz, in a
discussion spanning many pages, to highlight the multiple and severe
due process violations committed by the government. In short, she
concluded first, the unclassified basis for his designation as an
“enemy combatant” is insufficient as a matter of law and second,
that the classified basis for his designation, to the extent that it
was never disclosed to client or counsel prior to the designation
and to the extent that it contains other defects (redacted in her
opinion), violates Mr. Kurnaz’s entitlement to basic due process.
Overall, the opinion provides a clear and thorough exposition of the
extraterritorial application of the Constitution, the full import of
the Rasul decision, and the fundamental requirements of due process.
Just two days after the issuance of her order, the government moved
for leave to file an interlocutory appeal of the order and to stay
the proceedings in the district court pending the resolution of the
appeal. Only four hours after the government’s motion was filed, and
just as the Center for Social Justice had begun drafting a motion
for summary judgment, requesting an order for Mr. Kurnaz’s release,
Judge Green certified the case for interlocutory appeal and stayed
the proceedings in the district court.
Interviews with Professor Azmy concerning Mr. Kurnaz recently
appeared in the Wall Street Journal and Washington Post, as well as
in numerous foreign press reports.
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