Former POWs Urge Supreme Court to Hear U.S. Citizen Detainee’s Appeal

NEW YORK - Former U.S. prisoners of war, including Ambassador Douglas “Pete” Peterson, filed a friend-of-the-court brief today in the U.S. Supreme Court in support of Yaser Hamdi’s challenge to his indefinite, incommunicado detention. Mr. Hamdi, a U.S. citizen, reportedly surrendered to the Northern Alliance in the fall of 2001 and was transferred to U.S. custody. In April 2002, he was sent to a military brig in Virginia, where he is being held without access to counsel or family. Because he has never met with a lawyer, his father filed this appeal on his behalf.

The brief—filed jointly by the Lawyers Committee for Human Rights and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School—argues that the United States is holding Mr. Hamdi in violation of U.S. obligations under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Joining Ambassador Peterson in signing the brief are Leslie Jackson, Edward Jackfert, Paul Reuter, and Neal Harrington—all former prisoners of war who were profoundly affected by their captors’ compliance, or failure to comply, with Geneva Convention requirements.

“We welcome the Pentagon’s announcement, as the Supreme Court weighs whether to hear this case, that Mr. Hamdi may finally be allowed to see a lawyer,” said Deborah Pearlstein, who directs the Lawyers Committee’s U.S. Law and Security Program. “But the Pentagon’s insistence that access to counsel is not required by law, and is available only at the government’s discretion, misses the critical point. The point is that the rule of law is a matter of right, not a matter of grace.”

“The Supreme Court should take this case and make clear that the United States remains committed to upholding its obligations under the Geneva Conventions,” said Pearlstein. “The treatment of Mr. Hamdi undercuts a half-century of efforts to improve conditions for those captured during wartime—including U.S. troops captured while serving abroad.”

Mr. Hamdi’s attorneys are asking the Supreme Court to overturn a sweeping decision by a panel of the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit ruled in January 2003 that the President can legally detain any U.S. citizen captured anywhere in a foreign “zone of active combat operations.” The court’s decision made clear that this authority includes the power to hold that citizen in indefinite incommunicado detention—without access to an attorney or any opportunity to challenge the government’s evidence against him.

As part of its decision, the Fourth Circuit also swept aside the mandates of the Geneva Conventions - and the U.S. military’s own binding regulations - which provide that a captured combatant must be treated as a prisoner of war unless and until a competent tribunal determines him ineligible for such treatment. No such tribunal has been convened in Mr. Hamdi’s case or in the cases of others detained in Afghanistan. The brief filed today warns that the Fourth Circuit’s ruling “invites other nations to treat captured U.S. soldiers just as the current U.S. Executive claims it may treat captured soldiers: not by law, but by shifting political perceptions of the needs of the moment.”

The other signatories on the brief are experts in the law of war, including former UN High Commissioner for Human Rights Mary Robinson, former federal appeals court judge Patricia Wald, as well as international law experts and scholars Payam Akhavan, Mary Cheh, Stephen Salzburg, Marco Sassoli, and Minna Schrag. The law firm of Wiggin & Dana served as counsel on the brief.

Read the amicus brief

Read the background on Mr. Hamdi's case