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Detainee Litigation

Detainee Litigation

TypeCaseDescriptionYearKeywords

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Former Prisoners of War and Experts on the Law of War Amicus in Support of Petition of Certiorari in Hamdi Vs Rumsfeld (Supreme Court 2003) 03-6693 Yaser Hamdi, a U.S Citizen, Was Captured by Northern Alliance Forces in Afghanistan and Transferred into U.S. Custody. Detained as an “enemy Combatant,” Hamdi Sought Habeas Review in U.S. Courts to Contest His Detention as a Violation of Article 5 of the Geneva Conventions, a Treaty of the U.S. NIMJ Supported the Grant of Certiorari Because the Failure to Provide an Article 5 Tribunal Violated Hamdi’s Rights Under the Geneva Conventions NIMJ Asserted That the Fourth Circuit Improperly Interpreted the Geneva Conventions as Non-self-executing Treaties, and Ignored Long Standing Military Regulations and Practice Providing Article 5 Tribunals to Those Detained in Armed Conflict. NIMJ Asserted That the Supreme Court Must Grant Certiorari to Reaffirm That a Writ of Habeas Corpus is the Proper Mechanism for Challenging Detention in Violation of a Treaty of the U.S.2003Habeas, Geneva Conventions, Article 5 Tribunal, Self-executing Treaty, Supremacy Clause, Prisoner of War, Detention, Guantanatmo, GPW

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NIMJ & Military Law and History Scholars Amicus in Rasul V Myers (Supreme Court 2008) 08-235 Urging the Grant of Certiorari, NIMJ Argued That Review Was Required to Clarify That Military Supervisors Were Not Entitled to Westfall or Qualified Immunity to Prevent Their Being Held Liable for the Torture and Cruel, Inhuman or Degrading Treatment of Guantanamo Detainees Under the Doctrine of Command Responsibility. Such Conduct Was Clearly Prohibited by U.S. Military Practice, Regulation, and the Uniform Code of Military Justice (UCMJ).2008Qualified Immunity, Torture, Westfall Immunity, Command Responsibility, Uniform Code of Military Justice, UCMJ

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NIMJ & Retired Military Officers Amicus in Al Marri V Spagone (Supreme Court 2009) 08-368 NIMJ & Retired Military Officers Argued That the Military Detention of a Lawful Resident Alien Within the United States Violated the Posse Comitatus Act and the Traditional Limitations on the Use of the Military for Domestic Law Enforcement, and That the 2001 Authorization for the Use of Military Force Was Not an Exception to This Prohibition.2009Posse Comitatus Act, PCA, Domestic Law Enforcement, Military Detention, Lawful US Resident, Lawful Resident, Authorization for the Use of Military Force, 2001 AUMF, AUMF, Compulsory Military Power, Direct Active Us of Military

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NIMJ Amicus in Boumediene V Bush & Odah V United States (Supreme Court 2007) 05-5062 & 05-5063 NIMJ Argued That Guantanamo Detainees Were Entitled to Habeas Review Because the Procedures Used to Review Detention by Combat Status Review Tribunals (CSRTs) Were Inadequate Given the Delay from the Time of Capture and Distance from the Battlefield and That the Legal Definition of “combatant” Was Too Broad and Not Supported by the Law of War, Exceeding the Scope of Authority Granted by Congress to the President.2007Habeas, Military Commission, Combat Status Review Tribunal, AR 190-8, Geneva Conventions, Combatant, Substantial Support, International Law of War, Civilian

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NIMJ Amicus in Geren V Omar & Munaf V Geren (Supreme Court 2008) 07-394 & 06-1666 NIMJ Argued That Because Two American Citizens Detained in Iraq Were Under the Control of U.S. Forces Acting Under a U.S. Chain of Command, U.S. District Courts Had Habeas Jurisdiction to Review Their Detention and Proposed Transfer to Iraqi Forces. NIMJ Further Argued That Actions of US Servicemembers Who Detained Omar and Munaf, US Citizens Detained in Iraq, Were Actions Taken Under or by the Authority of the US, Authorizing Habeas Jurisdiction.2008Detention Authority, Habeas Jurisdiction, Actions Taken by or Under the Authority of the United States, United Nations Security Council, United Nations, Security Council, Security Council Resolutions, Multi-National Force-Iraq, MNF-I, Exclusive Custody, US Chain of Command

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NIMJ Amicus in Hamdan V Rumsfeld (Supreme Court 2006) 05-184 NIMJ Argued That Trial by Courts-martial Was Required for Guantanamo Detainees as No Article 5 Tribunal Had Determined They Were Not Entitled to Treatment as Prisoners of War Under Army Regulation 190-8 and the Third Geneva Convention. Departure from Procedural and Evidentiary Rules of Courts-martial in the Military Commissions in Guantanamo Bay Deprive Detainees of Their Right to a Fair Trial and Deviate from the Requirements of the Geneva Conventions.2006Military Commission, Guantanamo, Geneva Convention, Fair Trial, UCMJ, AR 190-8, Detention, Detainee, Article 5 Tribunal

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NIMJ Amicus in Khadr V Gates (DC Cir 2008) 07-1156 NIMJ Advocated That the Combat Status Review Tribunals Must Follow the International Law of War, Which Included the Children in Armed Conflict Protocol, Requiring Special Treatment, to Include Demobilization, Rehabilitation, and Reintegration, of Child Soldiers. NIMJ Argued That the D.C. Circuit Should Overturn the Combat Status Review Tribunal’s (CSRT) Classification of Khadr as an Unlawful Enemy Combatant Because It Violated the Law of War and U.S. Treaty Obligations. Because Khadr, Captured at the Age of 15 Was a Child Soldier, the U.S., a Signator to the Children in Armed Conflict Protocol (a Ratified Treaty of the U.S.), Was Required to Demobilize, Rehabilitate, and Reintegrate Him, Rather than Categorize Him as an Unlawful Enemy Combatant and Continue to Detain Him at Guantanamo. The CSRT Was Required to Implement These Special Treatment Obligations and Their Categorization of Khadr Violated the U.S. Obligation to Demobilize Him or Otherwise Release Him from Service.2008Combat Status Review Tribunals, CSRT, Child Soldiers, Children in Armed Conflict Protocol, International Law of War, Rehabilitation, Special Treatment of Child Soldiers

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NIMJ Amicus in Rasul V Bush & Odah V United States (Supreme Court 2004) 03-334 & 03-343 NIMJ Argued That Developments in Military and International Law Since the Supreme Court’s 1950 Johnson V. Eisentrager Decision, to Include the Enactment of the UCMJ in 1950, Supported the Exercise of Habeas Jurisdiction at Guantanamo to Challenge Detention. The U.S. Government Relied on Johnson to Contend That Judicial Intervention Would Interfere with the President’s War Powers. NIMJ Argued That Ongoing Article 5 Tribunals in Iraq Were Not Interfering in the Conduct of the War, That Historically the U.S. Military Had Conducted Independent Article 5 Tribunals in Past Armed Conflicts, and That Military Courts Had Previously Granted Habeas to Military Detainees at Guantanamo. As a Result, Habeas Review by U.S. Courts Was Necessary in Order to Ensure the Rule of Law in Ongoing Guantanamo Detention.2004Habeas, Geneva Conventions, Article 5 Tribunal, Separation of Powers, Detention, Guantanamo, GPW

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NIMJ Amicus in Support of Petition of Certiorari in Hamdan V Bush (Supreme Court 2005) 05-184 NIMJ Argued in Favor of Supreme Court Review of Military Commissions Created by the President in His Military Order of November 13, 2001 Because It Raised Significant Questions on the Demarcation Between the Military and Civilian Sphere in Our Democratic System in the Context of the Contemporary Struggle Against Terrorism, as Well as Whether the Geneva Conventions Are Self-executing or Have Been Executed by Military Regulation.2005Habeas, Military Commission, Geneva Conventions, Detention, Guantanamo, Military Jurisdiction, GPW, Geneva Convention on Prisoners of War, POWs, AR 190-8, Enemy Combatants, Indefinite Detention, Habeas, Guantanamo