NEW YORK - The Brennan Center for Justice and the law firm of Jenner & Block LLP filed a brief yesterday on behalf of former federal judges in Qassim v. Bush. The brief argues that our federal courts have the power to end the four-year-plus detention of two men in the Guantánamo Bay Naval Base who the Government concedes are innocent, but who remain imprisoned. Such an arbitrary exercise of executive authority, contend the former judges, cannot go unchecked by the courts.

The two men, Abu Bakker Qassim and Adel Abdu’ Al-Hakim, are ethnic Uighurs from western China. More than four years ago, they were sold by bounty hunters to U.S. forces in Pakistan. Since then, they have been held at Guantánamo. Almost a year ago, the Government conceded that they were not members of the Taliban, al Qaeda or supporting forces, and their detention had been a mistake. But the Government still refuses to release the men and instead asserts it can confine them indefinitely.

The lower court ruled that the men’s detention was illegal. It concluded, however, that the courts were impotent to provide any relief.

The Brennan Center’s “friend of the court” brief was filed in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of a bipartisan group of former federal judges. The judges argue that the federal courts’ authority to free people unlawfully imprisoned by the executive is a keystone of limited government under the Constitution. They also explain how federal courts can help impose conditions on release that satisfy both the public interest in security and our Nation’s commitment to constitutional values.

One former federal judge, the Honorable John J. Gibbons, who argued the landmark case of Rasul v. Bush in the U.S. Supreme Court, explained, “The Framers viewed indefinite Executive detention as the greatest danger to our laws and Constitution. To safeguard against its abuse, they invested the federal courts with the power to provide a remedy to those whose legal rights have been violated.”

The Jenner & Block attorneys on the case are Lorelie S. Masters and Scott B. Wilkens.

The Brennan Center’s work in this case is part of its Liberty and National Security Project.

Key Documents

• Brief

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