Suit on Behalf of Prisoners Blocked

A Los Angeles coalition of clergy, lawyers and professors cannot press a court challenge on behalf of prisoners brought to Guantanamo Bay naval station because they have not established a relationship with the detainees, a federal appeals court in San Francisco ruled Monday.

The coalition, including USC law professor Erwin Chemerinsky and Venice civil rights attorney Stephen Yagman, “has not demonstrated any relationship with the detainees,” the U.S. 9th Circuit Court of Appeals ruled. “The record is devoid of any effort to even communicate with the detainees.” The decision upheld a ruling by U.S. District Judge A. Howard Matz in Los Angeles.

At the same time, the appellate court, in its 3-0 decision, reversed Matz’s ruling that no U.S. court has jurisdiction to consider claims that the Guantanamo detainees are being held unconstitutionally, without being charged with a crime.

The appellate court ruled that Matz did not have the jurisdiction “to hold that the constitutionally embedded right of habeas corpus was suspended for all Guantanamo Bay detainees, without regard for their particular circumstances.”

Since the coalition did not have standing to sue, it was inappropriate for Matz to rule on the broader issue, the 9th Circuit held, saying, “Courts should not adjudicate rights unnecessarily.”

The coalition’s suit contended that hundreds of prisoners from 36 countries are being held at Guantanamo after being captured in Afghanistan in violation of the Constitution and the Geneva Conventions governing the treatment of war prisoners.

The suit asserted that the detainees have been deprived of liberty without due process of law, have not been informed of the nature and cause of the accusations against them nor afforded the assistance of counsel. The suit contends the detainees are entitled to be brought before a civilian court in the United States and informed of their charges, or be released.

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U.S. Urges Dismissal

The Justice Department urged that the suit be dismissed, describing the coalition as “uninvited meddlers,” who had no idea whether the detainees have any desire to have their cases adjudicated in the U.S., “a nation against which they have waged war.”

Justice Department spokeswoman Barbara Comstock said Monday that the department was pleased with the appellate ruling. “The military has acted within its authority in detaining noncitizens captured in combat outside of the United States,” she said.

Chemerinsky countered that “the decision makes new law that is dangerous.”

“It is so important that if a person being held by the government can’t sue on his own behalf, that someone can sue on behalf of that person,” he said.

Whether the Guantanamo detainees have any legal rights in the U.S. judicial system is also at issue in a case pending in the federal appeals court in Washington. Earlier this year, U.S. District Judge Colleen Kollar- Kotelly ruled that the detainees, including suspected members of Al Qaeda and the Taliban, have no right to a hearing in a federal court, meaning that the military could hold them indefinitely. The detainees’ appeal is scheduled to be heard Dec. 2.

There is one key distinction between that case and the one in Los Angeles. In the Washington suit, a dozen detainees from Kuwait, two British citizens and an Australian are being represented by attorneys hired by their families.

In both lawsuits, the defendants include President Bush, Secretary of Defense Donald H. Rumsfeld and other federal officials. Rumsfeld has said the prisoners were being interrogated to gather intelligence and for possible court cases.

In her 24-page opinion upholding Matz’s ruling tossing out the coalition’s lawsuit, 9th Circuit Judge Kim M. Wardlaw said the case “stands or falls on whether the coalition has standing to bring a habeas petition on behalf of the Guantanamo Bay detainees.”

Wardlaw said it was well-established that a habeas corpus petition could be filed by third parties on behalf of a prisoner. But she quoted at length from Whitmore vs. Arkansas, the leading Supreme Court decision on the issue, which said that “ ‘next friend’ is by no means granted automatically to whomever seeks to pursue an action on behalf of another.”

The Whitmore decision held that a “next friend” must satisfy two prerequisites to gain standing. First, he must provide an adequate explanation -- such as inaccessibility, mental incompe- tence or other disability -- why the prisoner can’t have requested that the suit be filed. And the “next friend” must show that he is truly dedicated to the best interest of the prisoner.

In this instance, Chemerinsky and Yagman said the detainees “appear to be held incommunicado,” and thus are physically blocked from the courts.

Wardlaw called this a “hyperbolic argument” lacking factual support, because the prisoners have been “visited by members of the International Red Cross and diplomats from their home countries, and have had limited opportunities to write to friends and family members.”

On the other hand, the judge acknowledged that “it is evident that the detainees are being held in a secure facility in an isolated area of the world, on a United States Naval Base in a foreign country, to which United States citizens are severely restricted from traveling. The detainees are not able to meet with lawyers, and have been denied access to file petitions in United States courts on their own behalf.”

Yet without a significant relationship, “however worthy and high-minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case,” wrote Wardlaw, an appointee of President Clinton, quoting an earlier Supreme Court decision.

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Impact on Future Suits

Chemerinsky’s co-counsel, Yagman, said the appellate court’s secondary ruling on the jurisdiction issue was a silver lining in the case, because it is a more significant issue and offered hope that lawyers for the detainees could win the case in Washington.

At the oral argument July 10, Deputy Solicitor Gen. Paul D. Clement said Judge Matz was “exactly right” that no U.S. court had jurisdiction over the detainees.

Chemerinsky countered that there never had been a decision by the Supreme Court or any federal appellate court denying “next friend” standing when a prisoner had no access to a court and that without this suit, “there’s no way to protect the rights of these individuals.”

Most of the leading cases in which there have been “next friend” disputes involve the death penalty.

Generally, in those cases, a prisoner is trying to forsake further appeals and a third party -- such as a family member -- is attempting to keep the case open. The critical question is whether the third party truly has the prisoner’s best interest at heart.

Wardlaw’s ruling was joined by Judges Marsha Berzon and John Noonan, who respectively were appointed by presidents Clinton and Reagan.