ACLU Urges Supreme Court to Declare Guantánamo Bay Military Commissions Illegal

March 28, 2006 12:00 am

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NEW YORK – Describing the military commissions at Guantánamo Bay as unfair and unlawful, the American Civil Liberties Union urged the Supreme Court to halt their use in a friend-of-the-court brief filed in Hamdan v. Rumsfeld (05-184), which is being argued today.

“The military commissions established by President Bush do not provide a fair trial under any recognized set of legal standards, whether those standards are derived from the Constitution, our international treaty commitments, customary law or the Uniform Code of Military Justice,” said ACLU Legal Director Steven R. Shapiro. “There is no reason to believe that Congress ever intended to authorize such a system, and no reason for the Court now to uphold it.”

The military commission rules do not guarantee an independent trial court, do not provide for impartial appellate review, and do not prohibit the use of coerced testimony despite extensive evidence that coercive interrogation techniques have been used at Guantánamo Bay and elsewhere.

In its friend-of-the-court brief, the ACLU argues that this system fails to provide the basic procedural safeguards guaranteed by the Geneva Conventions and American law. In addition, the ACLU said the commissions violate the constitutional rule barring the government from creating a separate system of punishment that applies only to non-citizens.

Prior to reaching the merits of these arguments, the ACLU said, the Supreme Court will have to decide whether it still has jurisdiction to hear the case following congressional passage of the Detainee Treatment Act, also known as the Graham-Levin Amendment. The government is contending that the Detainee Treatment Act strips the Court of jurisdiction to hear Hamdan’s appeal, even though it was accepted for review before the Detainee Treatment Act was adopted.

“The government’s effort to prevent the Court from even addressing the serious legal issues raised by the military commissions is disturbing at many levels,” Shapiro said. “It is contrary to the language and history of the Detainee Treatment Act. It is also inconsistent with our most fundamental notion of checks and balances.”

The ACLU’s friend-of-the-court brief in the case is online at: scotus/2005/ 23392res2006010405184/ 23392res20060104.html

A 2004 ACLU report about the commissions, “Conduct Unbecoming: Pitfalls in the President’s Military Commissions,” is online at

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