Rasul, Shafiq, et al. v. Bush, George, et al. / Al Odah, Fawzi, et al. v. U.S.

Questions presented: Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba?

BY LAUREN PUERNER & JACK C. DOPPELT, MEDILL NEWS SERVICE

What happened the morning of Sept. 11, 2001, rattled America to its core and made its people wonder if they'd ever feel safe again.

Roughly ten hours after the World Trade Center came crashing down, President George W. Bush promised to do his part to protect America as well. Bush gave a televised speech telling Americans that the government would hunt down whoever was in any way responsible for the attacks on the World Trade Center and the Pentagon and make them pay.

Not long after the president made that vow, Congress passed the Authorization for Use of Military Force, which gave President Bush the power to use force against the "nations, organizations, or persons he determines planned, authorized, committed or aided the [Sept. 11] terrorist attacks or harbored such organizations or persons."

During the execution of this force, the United States and its allies captured many foreigners whom they thought were involved in the attacks and brought them to the prison at Guantanamo Bay, in Cuba, as "enemy combatants."

Upon learning that their relatives were being detained-possibly indefinitely-without having been charged and without access to counsel, families of 12 Kuwaitis, two Britons and two Australians filed suit in federal court in Washington, D.C., claiming these men's rights, among them the 5th Amendment guarantee of due process, were being denied.

According to Rasul v. Bush, the suit brought on behalf of the Britons and Australians, these four men were captured in Pakistan or Afghanistan between late 2001 and mid 2002 while they were visiting family, looking for work, or taking part in an arranged marriage. The father of the fourth man says his son may have joined the Taliban army.

Nonetheless, all four of the detainees deny that they are enemy combatants. "The detained prisoners are not, and have never been, members of Al Qaida or any other terrorist group. Prior to their detention, they did not commit any violent act against any American person, nor espouse any violent act against any American person or property," attorney Joseph Margulies wrote.

These prisoners sought a writ of habeas corpus, release from unlawful custody, access to a lawyer, an end to their questionings and other relief.

In Al Odah v. U.S., the lawyers arguing on behalf of the 12 Kuwaiti detainees claimed these people were captured in Afghanistan and Pakistan while providing humanitarian aid after the U.S. distributed leaflets offering local villagers "'millions of dollars for helping catch Al Qaida and Taliban murderers enough money to take care of your family, your village, your tribe for the rest of your life.'"

They pointed out that the government has acknowledged that some of the Guantanamo detainees were simply in the wrong place at the wrong time and are probably innocent.

The Kuwaitis sought a declaratory judgment and an injunction ordering that they be informed of the charges against them and that they be allowed to consult with lawyers and meet with their families.

The U.S. government argued that because these men are aliens being held outside the "ultimate sovereignty" of the United States, they have no access to our courts to challenge their detention.

But the lawyers representing these prisoners claimed that because the 1903 Lease Agreement with Cuba gives the U.S. "complete jurisdiction and control over and within [Guantanamo]," the U.S. therefore has "de facto" control over Guantanamo, even if the Lease gives "ultimate sovereignty" to Cuba.

On July 30, 2002, the district court held that it lacked jurisdiction in both cases, and believing that no court would have jurisdiction, it sided with the government and dismissed the cases.

Relying on the 1950 U.S. Supreme Court decision in Johnson v. Eisentrager, the court ruled that it did not have the jurisdiction to grant habeas corpus requests for aliens held outside the sovereign territory of the United States.

The Eisentrager case involved 21 German nationals in China who aided Japanese forces fighting against the United States after Germany's surrender in World War II, but before Japan's. The Germans were captured and tried by an American military commission, convicted of violating the laws of war and taken to a prison in Germany that was under the U.S. Army's control. One of the prisoners, on behalf of himself and the 20 others, sought writs of habeas corpus in U.S. district court, claiming violations of the Constitution, other U.S. laws, and the Geneva Convention of 1929.

In Eisentrager, the Court found that "these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States."

In appealing to the Court of Appeals for the District of Columbia, the detainees' lawyers argued that the circumstances surrounding Eisentrager were much different, and therefore that the district court erred in extending its ruling to these cases.

First off, they said that Eisentrager was distinguishable because its petitioners were convicted war criminals, whereas in these cases the prisoners are being held entirely without legal process. Also, they contended that while the German prisoners were "enemy aliens" by virtue of being citizens of a country at war with the United States, the detainees in these cases are citizens of some of our country's strongest allies. And finally, they argued that Guantanamo Bay cannot be compared with wartime China because the former is "under exclusive jurisdiction and control" of the United States.

On March 11, 2003, the appeals court unanimously affirmed the district court's ruling that the precedent set by Eisentrager precluded extending the "privilege of litigation" to the Guantanamo detainees.

The Court of Appeals, in an opinion written by Judge A. Raymond Randolph, found that the Guantanamo detainees "have much in common with the German prisoners in Eisentrager. They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States."

The court also used the Eisentrager opinion to explain the implications of what would happen if the detainees were given access to our courts. "'If the Fifth Amendment confers its rights on all the world [it] would mean that during military occupation irreconcilable enemy elements [and] guerilla fighters could require the American judiciary to assure them rights to a trial," the court argued, quoting from Eisentrager.

The detainees then sought review from the U.S. Supreme Court.

Thomas B. Wilner, one of the attorneys representing the Kuwaiti detainees, wrote in a petition to the Court that the current ruling, as it stands, would dramatically compromise all foreigners' rights. "The D.C. Circuit's decision does not depend on a state of war or whether the foreigners detained are enemy combatants," Wilner wrote. "It would apply in times of peace as well as war. It would as clearly authorize executive officials to seize a Canadian off the streets of Toronto in time of peace as an Arab off the streets of Islamabad in time of war."

Solicitor General Theodore B. Olson countered on behalf of the U.S. that allowing judicial review of the claims of aliens seized outside the U.S. by the military would "divert [the president's] efforts and attention from the military offensive abroad to the legal defensive at home."

Several people, groups and organizations ranging from former American prisoners of war to former federal judges have submitted amicus briefs in support of the detainees. They argue, among other things, that foreigners holding American soldiers in current or future conflicts will look to our country's failure to allow foreign prisoners to appear before a military tribunal and will therefore refuse to give that right to American captives.

On Nov. 10, 2003, the Court accepted review in both cases, consolidated them, and limited review to the question mentioned above.

A month later, on Dec. 18, a divided 9th Circuit Court of Appeals panel reached the opposite conclusion of the Court of Appeals for the DC Circuit. Calling the issue, "new, important, and difficult," the 9th Circuit in Gherebi v. Bush decided that the Eisentrager case doesn't resolve the question.

"Although we agree with the government that the legal status of Guantanamo constitutes the dispositive factor in our jurisdictional inquiry," worte Stephen Reinhardt, "we do not find that [Eisentrager] requires sovereignty rather than simply the existence of territorial jurisdiction, which unquestionably exists here."

The 9th Circuit opinion does not affect the Supreme Court's decision to resolve the issue in the Rasul and al Odah cases.

During the Court's oral arguments on April 20, 2004, the justices delved into just what relief the detainees were seeking if the Court were to hold that American courts had jurisdiction. Though the justices voiced concern about unbridled executive detentions by the military anywhere in the world, they were also concerned about the specter of 800 federal judges holding hearings for every person the military holds.

"I'm still honestly most worried about the fact that there would be a large category of unchecked and uncheckable actions dealing with the detention of individuals that are being held in a place where America has the power to do anything," Justice Stephen Breyer summarized as he questioned U.S. Solicitor General Theodore Olson.

Though the Solicitor General stood by the Court's 1950 opinion in Eisentrager, the justices seemed less willing to consider it applicable to situations in which detainees are held without any hearing whatsoever, preferring instead to regard Eisentrager as standing for the proposition that habeas relief was denied in that case by a court that took jurisdiction to consider the issue on the merits.

Though there was consensus among the justices questioning the applicability, clarity and intellectual consistency of Eisentrager, (with Justice Ruth Bader Ginsburg calling it "a hard opinion to fathom"), each justice, but Clarence Thomas, aired concerns about how to draw a line that would guide the courts in executing its role, if any, in ensuring that the executive and military not have unchecked discretion over non-American detainees relocated to a unique location in Guantanamo, Cuba.

In questioning John Gibbons, a retired federal judge who argued the case for the detainees, Judge Anthony Kennedy sought guidance on whether detentions as brief as a few weeks should trigger court review and what should happen once the courthouse door is open to a detainee.

"What happens when the person comes before the court?" asked Kennedy, "and the judge says, 'now what am I supposed to do?'"

Justice Ginsburg mused, "If you prevail on jurisdiction, don't you go out the door immediately" because "non-resident aliens have no due process rights?"

Justice Sandra Day O'Connor narrowed the issues by getting counsel for the detainees to concede that if the military holds its own tribunals for detainees, they would have no remedy in U.S. courts, and by having the Solicitor General agree that courts would have jurisdiction over American citizens detained by U.S. authorities anywhere in the world.

The uniqueness of Guantanamo bedeviled the justices too, with counsel for the detainees characterizing it as a "lawless enclave" and a "no-law zone," but with the habeas statute referring to U.S. sovereignty, and the lease agreement with Cuba stipulating control but not sovereignty.

"In bringing people from Afghanistan or wherever they were brought to Guantanamo, we are doing in functional terms exactly what we would do if we brought them to the District of Columbia? If the metaphysics of sovereignty do not preclude us from doing what we've been doing for the past hundred years," asked Justice David Souter just as the argument was concluding, "why is it a bar to the exercise of judicial jurisdiction under the habeas statute?"

Earlier Justice Antonin Scalia offered a ready solution to the line drawing issue: Leave it to Congress.

"If the people think that this is unfair, if Congress thinks this is unfair, with a stroke of the pen they can change the habeas statute," said Scalia, further noting that the courts in contrast are not well-positioned to "draw up this reticulated system to preserve our military from intervention by the courts."

In an exception to its usual practice, the Court made the audio of the oral arguments available immediately after the arguments concluded.

On June 28, 2004, a day before the very end of the Court's 2003-04 term, the Court issued its opinion. It held 6-3 that U.S. courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

In the Court's relatively brief and straightforward lead opinion, Justice John Paul Stevens concluded that any foreigner held potentially indefinitely at Guantanamo has the same habeas corpus right to federal-court jurisdiction as would a citizen.

To arrive at that conclusion, Stevens relied on Eisentrager, distinguishing the situation in that post-World War II case in that here, the detainees "are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

Stevens also noted that in Eisentrager, the question was of the prisoners' constitutional, not statutory, entitlement to habeas corpus. Since Eisentrager in 1950, Stevens wrote, "subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to 'fundamentals,' and provided a more direct claim to federal-court jurisdiction through 28 U.S. C. "2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held in custody in violation U.S. laws.

"Considering that the statute draws no distinction between Americans and aliens held in federal custody,' Stevens wrote, "there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee's citizenship."

Though the Court opened the courthouse door to each of the nearly 600 detainees held at Guantanamo, the case was remanded to the district court, presumably in Washington, D.C. where the initial suit was filed, to determine "[w]hether and what further proceedings may become necessary."

Justice Anthony Kennedy concurred in that judgment, but wrote separately to say that he would have followed the framework of Eisentrager rather than find a post-Eisentrager statutory basis.

"The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions," reasoned Kennedy. "First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities," he wrote, and second, "the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status."

In Eisentrager, Kennedy noted, the prisoners were already tried, convicted and sentenced by a military commission of violating the laws of war and were sentenced to prison terms. "Indefinite detention without trial or other proceeding presents altogether different considerations," Kennedy distinguished. "It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus."

The three dissenters -- Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist -- called the Court's opinion "irresponsible," "carefree," "breathtaking," "judicial adventurism of the worst sort." "a monstrous scheme in time of war," and "a wrenching departure from precedent" that "springs a trap on the Executive...making [Guantanamo Bay] a foolish place to have housed alien wartime detainees."

Wielding the caustic pen, Justice Scalia criticized the opinion for overruling Eisentrager without saying so, and extending the habeas statute, "for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts."

Scalia was particularly thrown by the majority's reasoning that would have either cases after Eisentrager overruling it without even mentioned it or overruling it themselves which "would require the Court to explain why our almost categorical rule of stare decisis in statutory cases should be set aside in order to complicate the present war, and, having set it aside, to explain why the habeas statute does not mean what it plainly says."

The dissenters were concerned well beyond the present cases and situation. "The consequence of this holding, as applied to aliens outside the country, is breathtaking," Scalia wrote. "It permits an alien captured in a foreign theater of active combat to bring a "2241 petition against the Secretary of Defense. Over the course of the last century, the United States has held millions of alien prisoners abroad."

In concluding, the dissenters foresaw implications both for the federal judiciary and for the U.S. efforts to combat terrorism. "Departure from our rule of stare decisis in statutory cases is always extraordinary; it ought to be unthinkable when the departure has a potentially harmful effect upon the Nation's conduct of a war," wrote Scalia. "[U]nder today's strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts."

The dissenters offered a ready alternative. "Congress is in session. If it wished to change federal judges' habeas jurisdiction from what this Court had previously held that to be, it could have done so. And it could have done so by intelligent revision of the statute," Scalia wrote. "For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders' reliance upon clearly stated prior law, is judicial adventurism of the worst sort."