In 2004, 2006 and 2008 the CLA intervened as amicus curiae in the three United States Supreme Court cases to consider the reach of habeas corpus and the detentions at Guantanamo Bay, Cuba.
Less than 40 detainees remain held at the base, one of them is Khalid Ahmed Qassim. He has been detained for 16 years and despite the Court’s accepted jurisdiction to grant habeas relief he complains that he has yet to be told the basis for his detention. The CLA has intervened in his latest challenge to his detention again as amicus curiae, represented pro bono by Professor Joseph Margulies of Cornell University, and Timothy Otty QC and George Molyneaux (both of Blackstone Chambers in London).
The central issue before the Court relates to the extent to which the common law confers basic due process rights on a detainee in the determination of the availability of habeas corpus relief. The main purpose of the CLA brief is to set out the position in this regard as a matter of English common law, and to explain the basis upon which the Courts of England and Wales have historically exercised jurisdiction in habeas corpus cases. The brief does not purport to address the particular facts of Mr Qassim’s case or the correct approach as a matter of the law of the United States of America. Instead it seeks to assist the Court with a summary of how, as a matter of common law and absent clear statutory displacement, an English Court would be required to approach determination of a habeas corpus application, and any attempt by the Executive in the United Kingdom to justify detention by reference to classified material not disclosed to the detainee. The summary of argument in the brief reads as follows:
“The protection against arbitrary detention is among the oldest and most fundamental rights known to the common law, and now has the status of a ius cogens peremptory norm in international law. Any questions regarding the Court’s obligations in its exercise of the habeas jurisdiction must be addressed in that light. As a matter of English law, it is for the Court, and not the Executive, to determine whether there is a factual foundation for any deprivation of liberty based on the detainee’s alleged status. It has, furthermore, been clear that this has been the case under English law since at least 1759. When discharging its role as the finder of fact, the Court must adhere to the requirements of natural justice, which under the common law include the detainee’s right to see, and respond to, all evidence and submissions presented to the Court by the Executive. This too has been clear since the 18th Century at least.
Accordingly, if it were the United Kingdom, and not the United States of America, which controlled the Guantanamo Bay Naval Base and the persons detained there, (a) it would be the English Courts, and not the Executive, which would determine any issue relating to any “enemy” status alleged against Mr Qassim; and (b) in determining such issues, the Courts could not receive or have regard to any evidence or submissions withheld from him, absent a clear statutory derogation from his fundamental rights at common law. We believe that the same position would apply before Commonwealth Courts were any other Commonwealth State to be in control of the Guantanamo Bay Naval Base.”
An oral hearing in the case is anticipated for early 2019.