The “friend-of-the-court” brief, filed in the case of suspected al Qaeda agent Ali Saleh Kahlah al-Marri, argues that the Military Commissions Act violates the Constitution. The professors argue that the act denies al-Marri the right to a writ of habeas corpus—an order requiring that a “court of law review the legal adequacy of the executive’s grounds for detaining” an individual, according to Frank I. Michelman, Harvard’s Walmsley university professor and one of the scholars who signed the brief.
Since it was filed Tuesday, the brief has made a large splash in legal circles principally because two well-known conservatives—Steven G. Calabresi of Northwestern University and Richard A. Epstein of the University of Chicago—joined in the brief.
The Bush administration “figured out every constitutional protection you’d want and they removed them,” Epstein told The Associated Press. He added that while he considers many of his liberal colleagues to be “mad on many issues,” the government’s interpretation in this case was “beyond the pale.”
The brief was largely the work of three academics: Armstrong Professor of International, Foreign, and Comparative Law Gerald L. Neuman ’73; Bemis Visiting Professor in International Law Sarah H. Cleveland; and Yale Law School Dean Harold H. Koh ’75, a member of the Harvard Board of Overseers.
Neuman, in an interview yesterday, stressed the need for habeas corpus review, saying that it “is important for determining whether a person has been lawfully classified as an ‘enemy combatant.’”
“The fact that the government applies the label is not enough,” Neuman said, adding that the process for determining who is an enemy combatant should distinguish between those who are “arrested in the United States [and] those who have never taken up arms against the United States on a foreign battlefield.”
The brief was also signed by Loeb University Professor Laurence H. Tribe ’62, Smith Professor of Law Martha L. Minow, and Cromwell Professor of Law, Emeritus David L. Shapiro ’54.
The professors focused their criticisms on the act’s stipulation that no court has the “jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States.”
The professors wrote that allowing such a statute “would constitute a permanent abrogation of the writ,” and that the Bush administration’s “interpretation would be vastly threatening to the liberty of more than 20 million noncitizens residing in the United States.”
—Staff writer Paras D. Bhayani can be reached at email@example.com.
—Staff writer Kevin Zhou can be reached at firstname.lastname@example.org.