WilmerHale has secured several landmark victories on behalf of six Bosnian-Algerian prisoners held at Guantanamo Bay since January 2002.
In January 2002, the six men were transported by US forces from Bosnia to Guantanamo Bay, despite contrary orders by the Supreme Court of the Federation of Bosnia and Herzegovina and by the Human Rights Chamber for Bosnia and Herzegovina. For over five years, until June 2008, the Petitioners were imprisoned in Guantanamo Bay, cut off from their families and judicial oversight, without any independent review of the basis of their detention.
On June 12, 2008, the US Supreme Court issued a historic decision in Boumediene v. Bush, striking down the part of the Military Commissions Act of 2006 that sought to strip federal habeas corpus jurisdiction over Petitioners imprisoned at the United States Naval Station at Guantanamo Bay. The decision, written by Justice Anthony Kennedy and joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, is the first time in US history that the Court has held that an act of Congress violated the Suspension Clause of the Constitution. The Petitioners, represented by WilmerHale since the summer of 2004, were six natives of Algeria (including the lead Petitioner, Lakhdar Boumediene) who immigrated to Bosnia and Herzegovina more than a decade ago. Seth Waxman argued on behalf of the petitioners. Joining him on the brief from WilmerHale were Stephen Oleskey, Paul Wolfson, Robert Kirsch, Mark Fleming, Doug Curtis, Joseph Mueller, Paul Winke, Anne Small, David Lesser, Jonathan Cedarbaum, Michael Gottlieb, Pratik Shah, Lynne Campbell Soutter, Jeffrey Gleason, Lauren Brunswick and Julian Davis Mortenson.
The Supreme Court's long-awaited decision cleared the path for meaningful hearings in which Guantanamo detainees may challenge their imprisonment. In October 2008, WilmerHale filed the first-ever evidentiary response ("traverse") on behalf of Guantanamo prisoners, refuting the Government's asserted grounds for detention. WilmerHale's traverse included numerous supporting declarations and documentary evidence, as well as a separate classified submission filed under seal and a legal brief addressing the proper legal standard for detention of "enemy combatants."
As a result of WilmerHale's challenge, the US Government dropped its most inflammatory claim against the men, namely that they were planning to attack the US Embassy in Sarajevo in 2001. The US Government abandoned this claim even though President Bush had specifically mentioned it in the 2002 State of the Union address.
In November 2008, Judge Richard J. Leon of the US District Court in Washington DC held a seven-day hearing into the Government's allegations. It was the first merits hearing in a habeas case involving Guantanamo prisoners. The hearing also included another first-time event: testimony by Guantanamo prisoners, live via videolink from Cuba, in support of their own bid for release.
On November 20, 2008, Judge Leon ruled that the Government had failed to show any credible evidence justifying detention of five of the six men. Judge Leon also took the extraordinary step of imploring the Government not to appeal that ruling. Judge Leon ruled against the sixth Petitioner, Belkacem Bensayah.
In December 2008, the Government informed WilmerHale that it would, indeed, forgo any appeal and abide by the ruling as to the five successful Petitioners. On December 16, 2008, three of WilmerHale's clients—Mustafa Ait Idir, Hadj Boudella, and Mohamed Nechla—arrived safely home in Sarajevo, Bosnia, where they were met by elated family members and friends. This was the first time that the US Government has released Guantanamo prisoners in response to a court order. The remaining two successful petitioners, Lakhdar Boumediene and Saber Lahmar, were released and transferred to France in 2009.
WilmerHale appealed Judge Leon's denial of Belkacem Bensayah's habeas corpus petition to the US Court of Appeals for the District of Columbia. Mark Fleming argued the appeal in September 2009. On June 28, 2010, the DC Circuit panel unanimously reversed and remanded Judge Leon's ruling, holding that the government's evidence was insufficient to demonstrate that Mr. Bensayah was detainable. This marks the first (and so far only) case in which the DC Circuit has reversed a district court's denial of habeas corpus to a Guantanamo prisoner.
The Boumediene case is WilmerHale's largest pro bono effort in the history of a firm that has distinguished itself as a leader in pro bono representation. Since WilmerHale lawyers became involved in the case, they have visited the Guantanamo Bay detainees thirty times; gone on investigatory visits to Bosnia; conducted meetings with government officials of various countries, both in Washington and Europe; and developed numerous court filings in US courts in Washington DC and Boston and in the European Court of Human Rights in Strasbourg, France. A selection of key court papers is available below.
2010 Bensayah Appeal
2008 Habeas Corpus Proceeding in the U.S. District Court
2007-2008 Supreme Court Argument and Decision
Amicus Briefs Supporting Petitioners
Amicus Briefs Supporting Government