Ninth Circuit finds that U.S. exercises territorial jurisdiction and sovereignty over Guantanamo Bay naval base located in Cuba, thus district courts have jurisdiction over habeas corpus petitions of foreign detainees held there
Ninth Circuit finds that U.S. exercises territorial jurisdiction and sovereignty over Guantanamo Bay naval base located in Cuba, thus district courts have jurisdiction over habeas corpus petitions of foreign detainees held there
[The following case concerns the authority of the Executive Branch to hold uncharged foreign individuals indefinitely in territory under the "complete jurisdiction and control” of the U.S. The Ninth Circuit, immediately after publishing the opinion, put the mandate on hold until the U.S. Supreme Court decides Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), cert. granted, 2003 WL 22070725 (Nov. 10, 2003). See 2003 International Law Update 56.
After September 11, 2001, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States ...” Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001). Pursuant to this congressional authorization, U.S. forces entered Afghanistan to pursue the Taliban government and the terrorist al Qaeda network.
Beginning in early 2002, U.S. forces began transferring individuals captured in Afghanistan to the Guantanamo Bay naval base, located on the island of Cuba. The government has labeled these individuals "enemy combatants” and so far has not afforded them a chance to challenge the legality of their detention.
Belaid Gherebi filed a habeas corpus petition on behalf of his brother Faren, alleging that his detention at Guantanamo Bay violated the U.S. Constitution and the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. The district court eventually dismissed Gherebi's case for lack of jurisdiction on the theory that Guantanamo Bay naval base does not lie within sovereign U.S. territory. Gherebi appealed. The U.S. Court of Appeals for the Ninth Circuit reverses and remands.
The government relies on Johnson v. Eisentrager, 339 U.S. 763 (1950), holding that no U.S. district court has jurisdiction over the Guantanamo detainees. Johnson declined jurisdiction over a habeas petition by a German prisoner in Landsberg prison, Germany, after a trial and sentence received by a U.S. Military Commission in Nanking, China, for offenses committed in China after the end of World War II. The Johnson court noted that the petitioners were "alien enemies” and detained outside the territory over which the U.S. has control.
Here, the government takes the view that whatever the 1903 Lease and continuing 1934 Treaty with Cuba say about U.S. "territorial jurisdiction” over Guantanamo, it falls outside U.S. "sovereign territory.” The Court disagrees.
"It is evident that the United States exercises sole territorial jurisdiction over Guantanamo. ‘Territorial jurisdiction' exists as to ‘territory over which a government or a subdivision thereof, or court, has jurisdiction.' ... The U.S. government exercises the ‘power to proscribe, prescribe, adjudicate, and enforce the law' in Guantanamo ..., and further, the government's jurisdiction is both ‘complete,' see 1903 Lease, art. III, ... and exclusive, see 1903 Supplemental Agreement, art. IV ... (providing that U.S. courts exercise exclusive criminal jurisdiction over citizens and aliens, alike, for offenses committed on the Base). ... Where a nation exercises ‘exclusive jurisdiction' over a territory, territorial jurisdiction lies. ...”
"Here, the relationship between territorial jurisdiction and the right to file habeas petitions is particularly clear. The United States exercises exclusive criminal jurisdiction over all persons, citizens and aliens alike, who commit criminal offenses at the Base, pursuant to Article IV of the Supplemental Agreement. ... We subject persons who commit crimes at Guantanamo to trial in United States courts. Surely, such persons enjoy the right to habeas corpus in at least some respects.”
"Under these circumstances, for purposes of our jurisdictional inquiry, it is apparent that the United States exercises exclusive territorial jurisdiction over Guantanamo and that by virtue of its exercise of such jurisdiction, habeas rights exist for persons located at the Base. We reiterate that the essence of our inquiry involves the legal status of the situs of petitioner's detention - not the question whether ‘enemy combatants' in general are precluded from filing habeas petitions, or the question whether any particular constitutional issues may be raised.” [Slip op. 23-25]
The Court alternatively considers whether the U.S. exercises “sovereignty” over the base at Guantanamo. The government argued that, under the plain terms of the 1903 Lease, the “continuance” of Cuba’s “ultimate” sovereignty means that Cuba retains “maximum” or “definitive” sovereignty over the Base during the indefinite period of the U.S. presence.
The Court is not convinced. “That the Lease uses the word ‘continuance’ to describe Cuba’s ‘ultimate sovereignty’ does nothing to undercut the temporal construction of ‘ultimate.’ As we have explained, during the period the United States exercises dominion and control, i.e. sovereignty, over Guantanamo, Cuba retains a contingent sovereign interest – a reversionary right that springs into being upon the lawful termination of the U.S. reign. It is this reversionary interest that is ‘continued’ even as substantive (or qualitative) sovereignty is ceded to the United States. In effect, the lease functions not unlike a standard land disposition contract familiar in the area of property law, in which the partitioning of a bundle of rights into present and future interests is commonplace.”
“By the plain terms of the agreement, the U.S. acquires full dominion and control over Guantanamo, as well as the right to purchase land and the power of eminent domain. Until such time as the United States determines to surrender its rights, it exercises full and exclusive executive, legislative and judicial control over the territory, and Cuba retains no rights of any kind to do anything with respect to the Base.” [Slip op. 34-36]
Citation: Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003).
Filed in: 2004 International Law Update, Issue1