Court Backs Rights for Detainees

The U.S. cannot indefinitely detain captured foreigners at its naval base in Guantanamo Bay, Cuba, without giving them the opportunity to challenge their imprisonment in a U.S. court with the benefit of legal assistance, a federal appeals court in San Francisco ruled Thursday.

The 2-1 decision by the U.S. 9th Circuit Court of Appeals marked the second time a federal court has issued a favorable ruling on behalf of about 660 prisoners who are held at the base. The detainees were captured by U.S. forces in Afghanistan and Pakistan during hostilities following the Sept. 11 terrorist attacks in the U.S.

Many of the prisoners have been held at Guantanamo for nearly two years. The Bush administration contends that because the prisoners are “enemy combatants” being held on foreign soil, they have no right to talk with a lawyer or raise claims in any court.

Earlier this week, the Justice Department said the captives, some of whom allegedly are affiliated with Al Qaeda or the Taliban, can be held without access to lawyers or family members until U.S. officials are satisfied that they have revealed everything they may know about potential terrorist activities.

But the 9th Circuit majority rejected that argument. The judges ruled that although the U.S. government has leased the base from Cuba since 1903, in reality it has “total dominion” over Guantanamo, where a U.S. flag flies, and, consequently, the captives are entitled to due process in the American legal system.

“We cannot simply accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement,” Judge Stephen Reinhardt wrote for the majority.

“Even in times of national emergency -- indeed, particularly in such times -- it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike,” Reinhardt, who was appointed by President Carter, added.

Justice Department spokesman Mark Corallo said department lawyers were reviewing the decision.

“Our position that U.S. courts have no jurisdiction over non-U.S. citizens being held in military control abroad is based on long-standing Supreme Court precedent,” Corallo said. “This position has been upheld unanimously by the D.C. Circuit Court of Appeals with respect to the detainees in military control at Guantanamo Bay. The Supreme Court is reviewing the issue.”

Last month, the high court reversed a lower court decision and agreed to decide a case in which two Britons, two Australians and a dozen Kuwaitis contend they are being wrongly held at the Guantanamo base. In that case, Thedore B. Olson, the U.S. solicitor general, urged the Supreme Court not to hear it, contending that the courts have no role in reviewing the situation of prisoners at the base.

The 9th Circuit issued an order Thursday staying the effect of its decision until the Supreme Court rules.

The appeals court ruling reversed a decision by a federal district court judge in Los Angeles. The case was filed by Venice attorney Stephen Yagman on behalf of Salim Gherebi, a Libyan national imprisoned at Guantanamo.

Gherebi’s brother, Bilad, who lives in San Diego, asked Yagman to file a habeas corpus petition, which challenges an allegedly illegal imprisonment, on his brother’s behalf. Yagman said Bilad Gherebi asked for his help after learning from FBI agents that his brother had been taken into custody in Kabul and was being held at the base in Cuba.

Judge Susan Graber, a Clinton appointee, dissented, maintaining that the ruling flew in the face of a 1950 Supreme Court decision, Johnson vs. Eisentrager, regarding German prisoners who had been convicted of war crimes by a U.S. military tribunal in China after World War II and had then been brought back to Germany to serve their sentences.

In that case, the high court ruled that the German intelligence agents were not entitled to judicial review of their convictions because they committed crimes and were captured, tried and detained outside “any territory over which the United States is sovereign.”

Graber said “a straightforward reading of Johnson makes it clear that ‘sovereignty’ is the touchstone, under current law,” for whether a federal court can exercise jurisdiction. Because the U.S. only leases the Guantanamo base and the lease granted “ultimate sovereignty” to Cuba, U.S. courts have no authority over these prisoners, Graber said.

But the majority sharply disagreed, saying that the words “ultimate sovereignty” have to be analyzed in the context of other words in the lease as well as how the U.S. exercises total power at Guantanamo.

Reinhardt noted that the lease provided that “the United States shall exercise complete jurisdiction and control over and within” the base, which was originally leased as a coal supply station. Among other powers, the U.S. has the right to seize any property there by right of eminent domain. The lease can only be terminated with the agreement of both parties.

The U.S. terminated diplomatic relations with Cuba in 1961, two years after Fidel Castro ascended to power. Three years later, “Castro cut off water and supplies to the base and Guantanamo became and remains self-sufficient with its own water plant, schools, transportation, entertainment and fast-food facilities,” Reinhardt noted.

Reinhardt also noted that under a supplemental agreement to the treaty, the U.S. “exercises exclusive criminal jurisdiction over all persons, citizens and aliens alike, who commit criminal offenses at the base,” and they are tried in U.S. courts.

Reinhardt, an outspokenly liberal judge, quoted the Black’s Law Dictionary definition of sovereignty as “the supreme, absolute and uncontrollable power by which any independent state is governed.” If that definition is correct, Reinhardt said, “it would appear that there is no stronger example of the United States’ exercise of supreme power” than at Guantanamo.

Judge Milton I. Shadur, also a Carter appointee, joined the majority opinion.

In her dissent, Graber said the case raised “significant and troubling” issues, but “under existing Supreme Court precedent, however, I do not believe that we have jurisdiction to reach them.”

Several organizations, including the American Civil Liberties Union and the Lawyers Committee for Human Rights, hailed the decision. Attorney Kenneth Hurwitz of the lawyers group said he was pleased that the court had rejected the government’s argument that Guantanamo was not effectively under U.S. control.

Chapman University law professor John Eastman criticized the decision, saying “it fundamentally misunderstands the distinction between the judicial power and the president’s war-making or executive power. It has never been the case that people captured on the field of battle as these people were have access to the federal courts on habeas corpus grounds to challenge their detention as prisoners.”

Pepperdine University law professor Douglas W. Kmiec, who was a high-ranking Justice Department official during the administrations of Ronald Reagan and George H. W. Bush, agreed. “Judicial second-guessing of military decision neither befits the judiciary nor observes constitutional assignment,” he said.

But several other legal scholars said the ruling was well-reasoned and, in the words of Washington University law professor Leila Sadat, “narrowly drawn.”

Harold H. Koh, an international law specialist at Yale University, said: “The court correctly recognized that the issue is not whether the detainees are in U.S. territory, but whether they are under territory subject exclusively to U.S. control and U.S. law. The only power that U.S. officials have to detain aliens on Guantanamo flows from the U.S. Constitution, and that same Constitution requires that detainees be able to challenge their confinement by writs of habeas corpus,” the historic remedy for challenging an unconstitutional confinement, Koh said.

“If this ruling stands, it is a stunning repudiation of the president’s sweeping claim of authority to deny liberty to individuals based on executive determinations resting on secret evidence,” said Northwestern University law professor Douglass Cassel, who filed a brief on behalf of the 16 Guantanamo detainees whose case is now pending at the Supreme Court.

Yagman, Gherebi’s lawyer, said he was thrilled.

“As a kid growing up in Brooklyn in the late 1940s and early 1950s, I always pledged allegiance to the flag and believed it stood for freedom.” Yagman said. “This opinion makes me believe that at least some people in the government still believe the flag stands for freedom.”