"Rumsfeld v. Padilla: Brief Amicus Curiae of Comparative Law Scholars a" by Samuel R. Gross and J. Christopher McCrudden
 

Document Type

Brief

Publication Date

4-12-2004

Abstract

Amici are comparative law scholars and experts on the laws of the United Kingdom of Great Britain and Northern Ireland and the State of Israel.

Both terrorism and democratic values transcend borders. Democratic allies of the United States also face threats of terrorism. Some, notably the United Kingdom and Israel, have long histories of fighting terrorism. This brief documents how dramatically the indefinite, incommunicado detention to which Petitioner has subjected Jose Padilla departs from the minimum procedural protections that other democracies provide detained suspected terrorists. Each of these democratic allies uses four controls to constrain executive authority to detain suspected terrorists: (1) legislation regulating detention; (2) time constraints; (3) access to counsel; and (4) meaningful judicial review. Petitioner seeks license from this Court to dispense with all four limits.

Petitioner's indefinite, incommunicado detention of Padilla violates the basic standards of due process and human rights that leading democracies accept. This brief, filed on behalf of an international group of comparative law scholars and experts on the laws of the United Kingdom and Israel, shows that the unrestrained power that the Executive here seeks to exercise against a United States citizen - and seeks to justify by labeling Padilla an "enemy combatant" - has been rejected by democratic allies of the United States as incompatible with fundamental rights. Two democratic allies with long experience fighting terrorism, the United Kingdom and Israel, have rejected incommunicado, indefinite detention as a tool in the war on terrorism. Moreover, the United States Department of State has condemned the use of such tools by authoritarian regimes as violations of basic human rights.

Comments

Amicus: Alston, Professor Philip; Benvenisti, Professor Eyal; Bracha, Professor Baruch; Campbell, Professor Colm; Feldman, Professor David; Gearty, Professor Conor; Goodwin-Gill, Guy S.; Gross, Professor Emanuel; Gross, Professor Oren; Goodhart, Lord; Hazell, Professor Robert; Jowell, Professor Jeffrey; Kretzmer, Professor David; Lester, Professor Lord; Mann, Professor Kenneth; McCrudden, Professor Christopher; Aolain, Professor Fionnuala Ni; Rosenfeld, Professor Michel; Schulhofer, Professor Stephen J.; Shapira, Professor Amos; Sweet, Alec Stone; Weissbrodt, Professor David

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