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In case of 17 Chinese Muslims detained at Guantanamo Bay and not classified as “enemy combatants,” District of Columbia Circuit reverses grant of habeas corpus because Habeas statute does not grant detainees right to be taken to U.S. for release
This case concerns 17 Chinese citizens held at Guantanamo Bay Naval Base in Cuba. They are Uighurs, members of a Muslim minority in far‑west China. They argue that the U.S. Government must take them to U.S. territory and release them. In China, on the other hand, they would face arrest, torture and possible execution.
The Petitioners had settled in the Tora Bora mountains in Afghanistan, and were eventually turned over to the U.S. military as “enemy combatants.” At hearings before the Combatant Status Review Tribunal in Guantanamo, the evidence indicated that the Petitioners intended to fight the Chinese government and had received firearms training. Furthermore, an Uighur independence group allegedly associated with al Qaida or the Taliban had run the Petitioners’ camp The District of Columbia federal court issued the writ and this appeal ensued. The U.S. Court of Appeals for the District of Columbia Circuit reverses.
As a general principle, it is not within the province of any court to review the Government’s decision to exclude an alien from the U.S., unless there is an exception in the law. Here, the U.S. Government did not allow the Petitioners to enter the U.S. The crucial question then is what authority the district court had to set aside the Government’s decision.
“[W]hat law authorized the district court to order the government to bring Petitioners to the United States and release them here? It cannot be that because the court had habeas jurisdiction, see Boumediene v. Bush, 128 S. Ct. 2229 (2008), it could fashion the sort of remedy Petitioners desired. .. [T]he Supreme Court held that the decision whether to allow an alien to enter the country was for the political departments, not the Judiciary.”
“Petitioners and the amici supporting them invoke the tradition of the Great Writ as a protection of liberty. As part of that tradition, they say, a court with habeas jurisdiction has always had the power to order the prisoner’s release if he was being held unlawfully. But as in Munaf v. Geren, 128 S. Ct. 2207, 2221 (2008), Petitioners are not seeking ‘simple release.’ Far from it. They asked for, and received, a court order compelling the Executive to release them into the United States outside the framework of the immigration laws. Whatever may be the content of common law habeas corpus, we are certain that no habeas court since the time of Edward I ever ordered such an extraordinary remedy …”
“An undercurrent of Petitioners’ arguments is that they deserve to be released into this country after all they have endured at (sic) hands of the United States. But such sentiments, however high‑minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the Political Branches. We do not know whether all Petitioners or any of them would qualify for entry or admission under the immigration laws. …”
“We do know that there is insufficient evidence to classify them as enemy combatants—enemies, that is, of the United States. But that hardly qualifies Petitioners for admission. Nor does their detention at Guantanamo for many years entitle them to enter the United States. Whatever the scope of habeas corpus, the writ has never been compensatory in nature. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) … The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so. Nor do we have the power to require anything more.” [Slip op. 10‑12]
Citation: Kiyemba v. Obama, No. 08‑5424 (D.C. Cir. February 18, 2009).
Filed in: 2009 International Law Update, Issue 1
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U.S. Supreme Court holds, 5 to 4, that alien Guantanamo petitioners are entitled to seek habeas corpus; that Detainee Treatment Act of 2005 (DTA), Section 1005(e) review procedures are inadequate substitute for habeas corpus; and that these petitioners need not exhaust review procedures in Court of Appeals before proceeding with their habeas actions in District Court
The Petitioners in the following case are aliens detained at the Guantanamo Bay prison camp who have been designated “enemy combatants”� by the Combatant Status Review Tribunals (CSRTs). They had been apprehended in Afghanistan, Bosnia, Gambia, and at other foreign locations. With the “Authorization for Use of Military Force”� (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … [who] planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.”�
The Petitioners denied any involvement in the terrorist network that carried out the attacks, and in 2002 sought writs of habeas corpus in federal district court in the District of Columbia. The district court dismissed because Guantanamo is outside of the court’s territorial jurisdiction. The U.S. Court of Appeals for the District of Columbia Circuit affirmed, but the U.S. Supreme Court reversed because 28 U.S.C. Section 2241 extended statutory habeas jurisdiction to Guantanamo. Rasul v. Bush, 542 U.S. 466, 473 (2004).
While the Petitioners’ appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), Section 1005(e); it amended Section 2241 to give the U.S. Court of Appeals for the District of Columbia Circuit exclusive jurisdiction to review CSRT decisions. The Supreme Court held his provision inapplicable to cases (like the present one) pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 576 577 (2006). Congress then passed the Military Commissions Act of 2006 (MCA), whose Section 7(a) amended Section 2241(e)(1) to deny jurisdiction for habeas petitions that were pending at the time of its enactment. Consequently, the District of Columbia Circuit held that it lacked jurisdiction to hear the Petitioners’ cases. Boumediene v. Bush, 476 F.3d 981 (D.C. 2007). Petitions sought certiorari, which the U.S. Supreme Court granted.
The Supreme Court reverses and remands. Justice Kennedy delivered the majority opinion of the Court, joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito filed a dissent. Justice Scalia filed a dissent in which Chief Justice Roberts and Justices Thomas and Alito joined.
The majority holds that: (1) if MCA Section 7(a) is valid, the Petitioners’ cases must be dismissed. (2) However, Petitioners have the constitutional privilege of habeas corpus, which is not abridged by their status as enemy combatants or their presence in Guantanamo. The Suspension Clause (U.S. Const., Art. 1, Section 9, cl. 2) provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”� This clause has full effect in Guantanamo. The Court rejects the Government’s argument that Petitioners have no habeas rights because Cuba maintains sovereignty over Guantanamo, not the U.S. (3) The DTA’s procedures for reviewing the detainees’ status are not a sufficient substitute for habeas corpus, MCA Section 7(a) causes its unconstitutional suspension. (4) There may be substitutes for habeas corpus, but they would need to provide a meaningful opportunity to show that the law is erroneously applied. Also, the court must have the ability to correct the errors, consider the Government’s evidence as well as exculpatory evidence. (5) Petitioners have met their burden of showing that the DTA review process is an inadequate substitute for habeas corpus. Among other things, there are no provisions to challenge the President’s AUMF authority to detain the Petitioners indefinitely; to contest the CSRT’s findings of fact, or to supplement the record upon review with exculpatory evidence. MCA Section 7 thus suspends habeas corpus in an unconstitutional manner. (6) There is no jurisdictional bar to the District Court’s review of Petitioners’ claims.
As to the issue of whether the Petitioners are barred from habeas corpus relief, by virtue of their designation as “enemy combatants”� or because of their location in Guantanamo, the Court first reviews the history of the writ. Over time, Congress has consistently acted to preserve habeas corpus. In fact, Congress more often than not acted to expand the reach of habeas corpus and to expedite the resolution of prisoners’ claims.
Turning to the DTA, the Court points out its deficiencies. “Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him.”� [...]
“By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts, e.g., in post trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. … In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record.”�
“The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on appeal. It does point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. … Whatever the merits of this procedure, it is an insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The Deputy Secretary’s determination whether to initiate new proceedings is wholly a discretionary one. See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of “�New Evidence’ Relating to Enemy Combatant (EC) Status ¶ 5(d) (May 7, 2007) (Instruction 5421.1) (“�The decision to convene a CSRT to reconsider the basis of the detainee’s [enemy combatant] status in light of “�new evidence’ is a matter vested in the unreviewable discretion of the [Deputy Secretary of Defense]‘).”� [Slip op. 26].
Furthermore, the jurisdiction of the Court of Appeals to review is limited to a final decision of the CSRT that the Petitioner is properly detained as an enemy combatant.
The Court also reviews any prudential barriers to habeas corpus under these circumstances. A prominent issue involves the long delays in the proceedings. “The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases, six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions.”�
“To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.”� [Slip op. 27 28]
The majority also points to the limitations of its rulings. “Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA Section 7, 28 U.S.C.A. Section 2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact.”�
“Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the Writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status.”� [Slip op. 28]
“It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [See dissents of Roberts, C. J.; post, and Scalia, J.). The several answers to the charge of triumphalism might start with a basic fact of Anglo American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention."�
"And one could explain that in this Court's exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation."� [Slip op. 48].
The Court thus remands to the Court of Appeals, with instructions to remand to the District Court.
The dissent of Chief Justice Roberts argues that the majority is really attempting to review the
federal policy regarding enemy combatants. The current system created by the political branches adequately protects any rights that the aliens captured abroad and designated “enemy combatants”� may have. Thus, their petitions should be dismissed.
“[T]he political branches created a two part, collateral review procedure for testing the legality of the prisoners’ detention: It begins with a hearing before a Combatant Status Review Tribunal (CSRT) followed by review in the D.C. Circuit. As part of that review, Congress authorized the D.C. Circuit to decide whether the CSRT proceedings are consistent with “�the Constitution and laws of the United States.’ DTA Section 1005(e)(2)( c), 119 Stat. 2742. No petitioner, however, has invoked the D.C. Circuit review the statute specifies. See 476 F. 3d 981, 994, and n. 16 (D.C. Cir. 2007) ….”�
“As a consequence, that court has had no occasion to decide whether the CSRT hearings, followed by review in the Court of Appeals, vindicate whatever constitutional and statutory rights petitioners may possess. See 476 F. 3d, at 994, and n. 16. Remarkably, this Court does not require petitioners to exhaust their remedies under the statute; it does not wait to see whether those remedies will prove sufficient to protect petitioners’ rights.”� [Slip op. 31]. The majority’s failure to require exhaustion of remedies violates the standard procedure for Supreme Court review of constitutional questions.
Furthermore, the CSRT process is more generous than the protections traditionally afforded prisoners of war. “Prisoners of war are not permitted access to classified information, and neither are they permitted access to counsel, another supposed failing of the CSRT process. And yet the Guantanamo detainees are hardly denied all legal assistance. They are provided a “�Personal Representative’ who, as previously noted, may access classified information, help the detainee arrange for witnesses, assist the detainee’s preparation of his case, and even aid the detainee in presenting his evidence to the tribunal. See Implementation Memo, supra, at 161. The provision for a personal representative on this order is one of several ways in which the CSRT procedures are more generous than those provided prisoners of war under Army Regulation 190 8.”�
“Keep in mind that all this is just at the CSRT stage. Detainees receive additional process before the D.C. Circuit, including full access to appellate counsel and the right to challenge the factual and legal bases of their detentions. DTA Section 1005(e)(2)( c) empowers the Court of Appeals to determine not only whether the CSRT observed the “�procedures specified by the Secretary of Defense,’ but also “�whether the use of such standards and procedures … is consistent with the Constitution and laws of the United States.’ 119 Stat. 2742.”�
“These provisions permit detainees to dispute the sufficiency of the evidence against them. They allow detainees to challenge a CSRT panel’s interpretation of any relevant law, and even the constitutionality of the CSRT proceedings themselves. This includes, as the Solicitor General acknowledges, the ability to dispute the Government’s right to detain alleged combatants in the first place, and to dispute the Government’s definition of “�enemy combatant.’ [Cite]. All this before an Article III court”�plainly a neutral decisionmaker.”�
“All told, the DTA provides the prisoners held at Guantanamo Bay adequate opportunity to contest the bases of their detentions, which is all habeas corpus need allow. The DTA provides more opportunity and more process, in fact, than that afforded prisoners of war or any other alleged enemy combatants in history.”� [Slip op. 36].
Justice Scalia’s dissent argues that habeas corpus simply does not apply to aliens abroad. The text and history of the Suspension Clause provides no basis for the Court’s jurisdiction. In fact, it burdens military commanders with having to show in a civil forum why each and every enemy prisoner should not be released. He predicts that the U.S. will one day regret today’s opinion.
Citation: Boumediene v. Bush,128 S. Ct. 2229, 78 U.S.L.W. 4391, 4408 (U.S. June 12, 2008).
Filed in: 2008 International Law Update, Issue6
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In petition by U.S. citizen sentenced to death by Central Criminal Court of Iraq, District of Columbia Circuit finds that U.S. citizenship, without more, is not enough to confer habeas corpus jurisdiction where conviction was handed down by non U.S. court
The Central Criminal Court of Iraq (CCCI) convicted Mohammad Munaf (Petitioner), a naturalized U.S. citizen, of kidnapping and sentenced him to death. The CCCI found that Petitioner had conspired with others in Iraq to kidnap three Romanian journalists for whom he was serving as guide and interpreter. He is currently in the custody of U.S. military forces at Camp Cropper (near Baghdad) which serve as part of the Multi National Force Iraq (MNF I).
Petitioner filed for habeas corpus in the District of Columbia federal court, but the Court dismissed for lack of jurisdiction. Petitioner appealed. The U.S. Court of Appeals for the District of Columbia Circuit affirms, based on Hirota v. MacArthur, 338 U.S. 197 (1948) (U.S. military tribunal in Japan not U.S. tribunal), as applied by this Circuit in Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949) (military tribunal in Germany not U.S. court) and recently interpreted by Omar v. Harvey, 479 F.3d 1 (D.C. Cir. Feb. 9, 2007).
In this case, the Circuit Court rules that Hirota and Flick control. The MNF I is a multi national force, authorized by the U.N. Security Council that operates in Iraq in cooperation with the Iraqi Government. The CCCI is an Iraqi criminal court administered by the Iraqi Government. Because it is not a U.S. tribunal, the District Court does lack jurisdiction to hear Petitioner’s habeas case.
“Munaf contends that Hirota and Flick do not control because, like Omar and unlike the petitioners in Hirota and Flick, Petitioner is a U.S. citizen. … But [Petitioner's] citizenship does not take his case out of the ambit of Hirota and Flick. Hirota did not suggest any distinction between citizens and noncitizens who were held abroad pursuant to the judgment of a non U.S. tribunal. Indeed, Justice Douglas wrote a separate opinion criticizing the Hirota majority for seeming to foreclose habeas review even for American citizens held in such circumstances. See id. at 204 05 (Douglas, J., concurring) (1949).”
“In Omar, we held that ‘the critical factor in Hirota was the petitioners’ convictions by an international tribunal.’ … We explained that, because Hirota ‘articulates no general principle at all,’ the decision is controlling as a matter of precedent if the circumstances important to the Court’s decision are present here. … As in Hirota, [Petitioner's] case involves an international force, detention overseas, and a conviction by a non U.S. court. As we noted in Omar, conducting habeas proceedings in the face of such a conviction risks judicial second guessing of a non U.S. court’s judgments and sentences, and we explained that Hirota’s repeated references to the petitioners’ sentences ‘ demonstrate[] that the Court’s primary concern was that the petitions represented a collateral attack on the final judgment of an international tribunal.’ …”
“Whether a habeas petition represents a collateral attack on a conviction by a non U.S. court is not dependent on the petitioner’s citizenship. In light of the precedent established by Hirota, specifically as interpreted in Flick and Omar, American citizenship cannot displace the fact of a criminal conviction in a non United States court and permit the district court to exercise jurisdiction over [Petitioner's] habeas petition.” [Slip op. 3] While Hirota may not be a particularly compelling case, it should be left to the U.S. Supreme Court to overrule or modify its own case precedent.
Citation: Munaf v. Geren, 482 F.3d 582 (D.C. Cir. 2007).
Filed in: 2007 International Law Update, Issue4
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In case where detained U.S. citizen is about to be handed over to Iraqi authorities, District of Columbia Circuit holds that, to preserve its habeas corpus jurisdiction, district court may properly enjoin transfer of Petitioner to Iraqi tribunal
U.S. military forces in Iraq captured Shawqi Ahmad Omar (Petitioner), a U.S. citizen, in late 2004. They held him for two years incommunicado, and were planning to ship him over to Iraqi authorities for trial on terrorism charges. Petitioner claims he was in Iraq merely looking for
reconstruction related work. The Government alleges, to the contrary, that Petitioner belonged to the terrorist network of Abu Musab al Zarqawi, and that authorities found weapons and bomb making materials with him.
In August 2005, a panel of U.S. military officers did decide to turn Omar over to the Central Criminal Court of Iraq (CCCI) for trial. This Court has national jurisdiction over various criminal offenses, including local terrorism.
Omar’s wife and son petitioned for a writ of habeas corpus on his behalf in the District of Columbia federal court. To preserve its jurisdiction over the petition, that court issued a preliminary injunction against his transfer to Iraq.
The Government appealed, claiming (1) that the district court lacked jurisdiction to hear the habeas petition and (2) that the transfer to Iraqi authorities actually grants Petitioner the relief he is seeking, i.e., the release from U.S. custody.
The Government relies primarily on Hirota v. MacArthur, 338 U.S. 197 (1948). There the Court held that World War II Japanese officials could not invoke habeas corpus to challenge their convictions by a multinational military tribunal. In this case, however, a majority of a U.S. Court of Appeals for the District of Columbia Circuit panel affirms.
Unlike the petitioners in Hirota and in Flick v. Johnson, 174 F.2d 983 (D.C. Cir. 1949), the Government has not charged Petitioner Omar with terrorism or a similar crime, much less convicted him of one. Moreover, Petitioner is not trying to collaterally attack a final conviction by an international tribunal. He only seeks to test the lawfulness of his extra judicial detention in Iraq, where he has remained in the control of U.S. forces for over two years without legal process.
“True, a panel of three military officers found him to be a ‘security internee’ and an ‘enemy combatant,’ but those determinations, based as they are on military considerations, are a far cry from trial, judgment, and sentencing. See [Hamdi v. Rumsfeld, 542 U.S. 507, 518 519 (2004)]
(discussing enemy combatant status) … Habeas proceedings here run no risk, as they did in both Hirota and Flick, of judicial second guessing of an international tribunal’s final determination of guilt.”
“The fact that [Petitioner] has never been convicted of criminal activity thus distinguishes this case from both Hirota and Flick, and rightly so, given that challenging extra judicial detention is among the most fundamental purposes of habeas. ‘At its historical core,’ the Supreme Court
has explained, ‘the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.’ …”
“Where, as in Hirota and Flick, individuals have been convicted and sentenced by a criminal tribunal, some form of judicial process has occurred, reducing the risk of unlawful extra judicial detention. But where, as here, the Executive detains an individual without trial, the risk of
unlawful incarceration is at its apex.” [...]
“… Omar’s petition fits comfortably within the terms of the modern habeas statute a proposition the government nowhere contests. Under 28 U.S.C. Section 2241, federal courts have authority to issue the writ ‘within their respective jurisdictions’ to prisoners ‘in custody under, or by color of,
the authority of the United States.’ 28 U.S.C. Section 2241(a), (c)(1).”
“Omar’s petition satisfies both requirements. First, the petition is ‘within the jurisdiction’ of the district court because respondents, the Secretary of the Army and two high ranking Army officers, are amenable to service in the District of Columbia. … ” “Second, although American personnel in Iraq operate as part of the [multi national force], the government concedes that
Omar is ‘held’ by U.S. forces, … and that those forces operate ‘subject to’ no independent [multi national force] authority … Omar is thus ‘in custody under or by color of the authority of the United States.’ As a consequence, the district court has jurisdiction to entertain Omar’s habeas petition.” [Slip op. 8 9]
Neither Hirota nor the “political question” doctrine deprive the district court of jurisdiction to hear Omar’s petition. A transfer would not give [Petitioner] the relief he could obtain through habeas. Finally, the district court’s preliminary injunction properly preserves its jurisdiction
to entertain the petition.
Citation: Omar v. Harvey, 2007 WL 420137 (D.C. Cir. 2007).
Filed in: 2007 International Law Update, Issue2
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U.S. Supreme Court decides (1) that its previous holding in Zadvydas v. Davis applies to removable aliens like Cuban habeas corpus petitioners who are deemed inadmissible to United States, (2) that government cannot confine them indefinitely and (3) that it must release them
An immigration official has a duty to inspect every alien who arrives in the United States. Unless the official concludes that the alien is “clearly and beyond a doubt entitled to be admitted,” he or she generally has to undergo removal proceedings to determine admissibility. Meanwhile, the U.S. may detain the alien, subject to the Secretary of Home Security’s (Secretary’s) discretionary authority to parole him into the country.
If, at the end of removal proceedings, the tribunal finds the alien inadmissible and to be removed, the law provides that the Secretary “shall remove the alien from the United States within a period of 90 days,” 8 U.S.C. Section 1231(a)(1)(A). The instant cases deal with the extent, if any, of the Secretary’s authority to continue to detain an inadmissible alien subject to a removal order after the statutory 90 day removal period is over.
Respondent, Sergio Suarez Martinez, and petitioner, Daniel Benitez, arrived in the U.S. from Cuba in June 1980 as part of the Mariel boatlift (Cuban exiles assembled fleet of fishing and pleasure vessels in Cuban port of Mariel and succeeded in bringing more than 120,000 Cubans to the U.S.), see Palma v. Verdeyen, 676 F.2d 100, 101 (C.A.4 1982) (describing circumstances of Mariel boatlift), and the Attorney General (AG) paroled them into the U.S. pursuant to his statutory authority.
By the time they had applied for an adjustment of their status, both men had become inadmissible because of prior criminal convictions while on parole. When Martinez sought adjustment in 1991, for example, Rhode Island had already convicted him of assault with a deadly weapon and California had found him guilty of burglary. By the time Benitez had sought the same relief in 1985, Florida had convicted him of grand theft.
Moreover, both men committed additional felonies after the denial of their adjustment applications. Martinez’s convictions included petty theft with a prior conviction in 1996, assault with a deadly weapon in 1998, and attempted oral copulation by force in 1999. Benitez’s rap sheet listed two counts of armed robbery, armed burglary of a conveyance, armed burglary of a structure, aggravated battery, carrying a concealed firearm, unlawful possession of a firearm while engaged in a criminal offense, and unlawful possession, sale, or delivery of a firearm with an altered serial number.
The AG revoked Martinez’s parole in December 2000. The Immigration and Naturalization Service (INS) then took Martinez into custody and filed removal proceedings against him. An Immigration Judge found him inadmissible because of his prior convictions, and lack of sufficient documentation; accordingly, he ordered him sent back to Cuba. Martinez did not appeal. Since his physical return to Cuba was not reasonably foreseeable, the INS kept him in custody beyond the 90 day removal period where he stayed until the habeas court ordered his release.
Benitez’s parole was revoked by the AG in 1993 and the INS straightaway started removal proceedings. In December 1994, an Immigration Judge ordered him deported. Benitez did not seek further review. When his state prison term was over, the INS took him into custody looking toward removal to Cuba. Since that was not reasonably foreseeable, he remained confined after the 90 day removal period had run out.
Both men filed federal habeas corpus petitions in different federal courts to contest the lawfulness of their ongoing detention. In Martinez’s case, the court ruled that removal was not reasonably foreseeable and ordered him set free under appropriate conditions. The Ninth Circuit later affirmed. Although another court also found that Benitez’s removal could not take place in the foreseeable future, it denied his habeas petition. The Eleventh Circuit affirmed. The Supreme Court granted certiorari in both cases and, in a 7 to 2 vote, affirms the Ninth Circuit, reverses the Eleventh Circuit and remands both cases.
Justice Antonin Scalia, author of the majority opinion, preliminarily explains that 8 U.S.C. Section 1231(a)(6) provides, in relevant part, as follows: “An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the [Secretary] to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”
This provision applies to three classes of aliens: (1) those ordered removed who are inadmissible under Section 1182, (2) those ordered removed who are removable under Section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk.
“In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court interpreted this provision to authorize the Attorney General (now the Secretary) to detain aliens in the second category only as long as ‘reasonably necessary’ to remove them from the country. The statute’s use of ‘may,’ the Court said, ‘suggests discretion,’ but ‘not necessarily … unlimited discretion. In that respect, the word ‘may’ is ambiguous.’ Id., at 697.”
“In light of that perceived ambiguity and the ‘serious constitutional threat’ the Court believed to be posed by indefinite detention of aliens who had been admitted to the country, the Court interpreted the statute to permit only detention that is related to the statute’s ‘basic purpose [of] effectuating an alien’s removal. … [O]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized.’ The Court further held that the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he can demonstrate that there is ‘no significant likelihood of removal in the reasonably foreseeable future.’ Id., at 701.”
“The question presented by these cases, … is whether this construction of Section 1231(a)(6) that we applied to the second category of aliens covered by the statute applies as well to the first that is, to the category of aliens ‘ordered removed who are inadmissible under [Section ]1182.’ We think the answer must be yes.”
“The operative language of Section 1231(a)(6), ‘may be detained beyond the removal period,’ applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. As the Court in Zadvydas recognized, the statute can be construed ‘literally’ to authorize indefinite detention, id., at 689, or (as the Court ultimately held) it can be read to ‘suggest [less than] unlimited discretion’ to detain, id., at 697. It cannot, however, be interpreted to do both at the same time.” [722-23]
The Government, joined by the dissent, maintained that the statutory purpose and the constitutional concerns that swayed our statutory construction in Zadvydas are not present for aliens, such as Martinez and Benitez, who have not been admitted to the United States. “Be that as it may, it cannot justify giving the same detention provision a different meaning when such aliens are involved. It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern. [Cites].” [723-24]
“In other words, when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail whether or not those constitutional problems pertain to the particular litigant before the Court.”
“The dissent takes issue with this maxim of statutory construction on the ground that it allows litigants to ‘attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances’ and thereby to effect an ‘end run around black letter constitutional doctrine governing facial and as applied constitutional challenges.’”
“This accusation misconceives and fundamentally so the role played by the canon of constitutional avoidance in statutory interpretation. The canon is not a method of adjudicating constitutional questions by other means. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) (…) ; see also Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1960 1961 (1997) (providing examples of cases where the Court construed a statute narrowly to avoid a constitutional question ultimately resolved in favor of the broader reading).”
“Indeed, one of the canon’s chief justifications is that it allows courts to avoid the decision of constitutional questions. It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts. [Cites]. The canon is thus a means of giving effect to congressional intent, not of subverting it.”
“And when a litigant invokes the canon of avoidance, he is not attempting to vindicate the constitutional rights of others, as the dissent believes; he seeks to vindicate his own statutory rights. We find little to recommend the novel interpretive approach advocated by the dissent, which would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case. Cf. Harris v. United States, 536 U.S. 545, 556 (2002) (rejecting ‘a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed’).” [724-25]
Citation: Clark v. Martinez, 125 S.Ct. 716 (S. Ct. 2005).
Filed in: 2005 International Law Update, Issue 7
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In Rasul v. Bush, the U.S. Supreme Court rules that 28 U.S.C. Section 2241 confers jurisdiction on district court to hear petitioners’ habeas corpus challenges to legality of their indefinite incommunicado detentions at Guantanamo Bay Naval Base
Congress passed a joint resolution Authorization for Use of Military Force (AUMF). It authorized the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks. Accordingly, the President sent armed forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had been supporting it.
The Petitioners here are 2 Australian and 12 Kuwaiti citizens captured in Afghanistan and held incommunicado at the Guantanamo Naval Base since early 2002.
The Base encompasses 45 square miles of land and water along the southeast coast of Cuba, pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish American War. Under the Agreement, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas],” while “the Republic of Cuba consents that during the period of the occupation by the United States … the United States shall exercise complete jurisdiction and control over and within said areas.”
Their relatives filed various actions in the U.S. District Court for the District of Columbia, challenging the legality of the detentions. The District Court dismissed them under Johnson v. Eisentrager, 339 U.S. 763 (1950). It saw them as habeas corpus petitions under 28 U.S.C. Section 2241 by aliens detained outside the sovereign territory of the U.S.
The U.S. Court of Appeals for the District of Columbia Circuit affirmed, and the U.S. Supreme Court granted certiorari. The precise issue taken up by the Supreme Court is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the U.S. exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” The Court’s answer is affirmative.
The Court begins its analysis with Johnson v. Eisentrager. It held that a federal district court lacked habeas corpus jurisdiction over German citizens captured by U.S. forces in China. A military commission convicted them and the Allies imprisoned them in occupied Germany.
It then, however, distinguishes the present case from Eisentrager. Here, the “detainees” are not nationals of a country at war with the U.S.; they deny that they have engaged in acts of aggression against the U.S. In addition, they have never had access to any tribunal and the U.S. has been confining them in territory over which, by a treaty with Cuba, the U.S. exercises exclusive jurisdiction and control. Furthermore, Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973), held that a prisoner’s presence within the territorial jurisdiction of the district court is not an absolute requirement for habeas jurisdiction. Instead, the habeas writ acts upon the custodian of the prisoner.
“In the end, the answer to the question presented is clear. Petitioners contend that they are being held in federal custody in violation of the laws of the United States. No party questions the District Court’s jurisdiction over petitioners’ custodians. … Section 2241, by its terms, requires nothing more. We therefore hold that Section 2241 confers on the District Court jurisdiction to hear petitioners’ habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base.” [2698]
Three Justices vigorously dissent. “The Court today holds that the habeas statute, 28 U.S.C. Section 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, …”
“The Court’s contention that Eisentrager was somehow negated by Braden., … – a decision that dealt with a different issue and did not so much as mention Eisentrager – is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change Section 2241, and dissent from the Court’s unprecedented holding.” [2701]
Citation: Rasul v. Bush, 124 S.Ct. 2686, 72 U.S.L.W. 4596 (2004).
Filed in: 2004 International Law Update, Issue7
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The Supreme Court also rules in Hamdi v. Rumsfeld that citizen-detainee seeking to challenge his classification as “enemy combatant” must receive notice of factual basis for this classification, and must obtain fair opportunity to rebut Government’s factual assertions before a neutral decisionmaker
Pursuant to the AUMF, U.S. forces went after the Taliban in Afghanistan who were supporting Al Qaeda. Hamdi presents the question whether, and, if so, how long, the U.S. government can detain a U.S. citizen as an “enemy combatant” without formal charges or proceedings. Yaser Esam Hamdi was born a U.S. citizen in 1980, but moved to Saudi Arabia as a child. Coalition forces captured him in Afghanistan, and he is now in a Naval brig in Charleston, South Carolina.
Hamdi’s father filed a habeas corpus petition in a Virginia federal court, alleging that Hamdi had gone to Afghanistan to perform humanitarian work and that he had not been in Afghanistan long enough to get military training.
The Executive supported its “enemy combatant” classification with an affidavit (the “Mobbs Declaration”) by Michael Mobbs, Special Advisor to the Under Secretary of Defense. He declared that, based on available reports and records, coalition forces found that Hamdi was working with the Taliban and was carrying a Kalishnikov assault rifle. The district court certified the sufficiency of the Mobbs Declaration for appellate review. The Fourth Circuit, however, ordered the habeas petition dismissed, and held that the AUMF does authorize petitioner’s detention.
On certiorari, a divided Supreme Court reverses and remands. It does agree with the Government’s argument that the AUMF has in fact authorized Hamdi’s detention. The essentially unrebutted Mobbs Declaration provided enough of a basis for treating Hamdi as an enemy combatant.
“[Hamdi] posits that his detention is forbidden by 18 U.S.C. Section 4001(a). Section 4001(a) states that ‘no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.’ … [The government] maintains that Section 4001(a) is satisfied, because Hamdi is being detained ‘pursuant to an act of Congress’ – the AUMF. …”
“[W]e conclude that the Government’s … assertion is correct. … In other words, … we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe …, and that the AUMF satisfied Section 4001(a)’s requirement that a detention be ‘pursuant to an Act of Congress’ (assuming, without deciding, that Section 4001(a) applies to military detentions).” [2639-40]
As for Hamdi’s argument that the AUMF does not authorize indefinite detention, the Court agrees. It explains that such detention may only last for the duration of the relevant conflict. As long as U.S. troops are taking part in active combat in Afghanistan, such detentions are part of the exercise of necessary and appropriate force authorized by the AUMF.
After finding that Congress has authorized Hamdi’s detention, the Court turns to the question of what process is constitutionally due to him as a detainee. “We … hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. …”
“‘For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ … These essential constitutional promises may not be eroded.”
“In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.”[2649-50]
Citation: Hamdi v. Rumsfeld,124 S.Ct. 2633, 72 U.S.L.W. 4607 (2004).
Filed in: 2004 International Law Update, Issue7
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In Rumsfeld v. Padilla, Supreme Court decides that New York federal court lacked Habeas Corpus jurisdiction over petitioner’s immediate custodian, only proper forum for his habeas petition being South Carolina federal court in district where commanding officer of Naval brig is situated
Armed with a material-witness warrant, federal authorities arrested Jose Padilla, a U.S. citizen, as he disembarked from a plane arriving from Pakistan at Chicago’s O’Hare International Airport. They took him to New York as a potential witness about the 9/11 attacks. The President later classified him as an “enemy combatant” based on suspicions as to his planned terrorist activities and ordered him into military custody.
The government is currently holding him in a brig on a U. S. Naval Base in Charleston, South Carolina. Through a next friend, petitioner filed for habeas corpus relief in a New York federal court. He named the President, the Secretary of Defense, and Commander Melanie Marr, the commanding officer of the Naval brig in question. The District Court denied his petition.
The Second Circuit agreed that the Defense Secretary was a proper respondent and that the Southern District had jurisdiction over the Secretary under New York’s long arm statute. The appeals court reversed on the merits, however, holding that the President lacks the authority to detain Padilla militarily.
On certiorari, the Supreme Court reverses and remands. It limits its holding to the proposition that Commander Marr was the only proper respondent as Padilla’s immediate custodian and thus the New York federal court lacked jurisdiction to decide the petition.
Under the federal habeas statute, the Court observes that: “the person who has custody over [the petitioner]” is the proper respondent. 28 U.S.C. Section 2242. “… [T]he identification of the party exercising legal control only comes into play when there is no immediate physical custodian with respect to the challenged ‘custody.’ In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent. If the ‘legal control’ test applied in physical-custody challenges, a convicted prisoner would be able to name the State or the Attorney General as a respondent to a Section 2241 petition.” [2720]
Here, the immediate custodian is Commander Melanie Marr, the officer in charge of the naval brig where Padilla is detained. A petitioner has to bring a habeas petition in the district court whose territorial jurisdiction includes the location of the immediate custodian. Thus, Padilla should have brought his habeas petition only in the federal district where Charleston, South Carolina lies.
Citation: Rumsfeld v. Padilla, 124 S.Ct. 2711, 72 U.S.L.W. 4584 (2004); see also The Washington Post, Tuesday, June 29, 2004, page A1.
Filed in: 2004 International Law Update, Issue7
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In upholding jurisdictional dismissals of habeas corpus petitions brought by several groups of alien detainees at Guantanamo Bay Naval Base, District of Columbia Circuit holds that U.S. courts are not open to aliens arrested and confined abroad by U.S. military forces under Supreme Court ruling in Johnson v. Eisentrager
A number of aliens taken into custody abroad during armed conflict in Afghanistan are being held abroad in United States military custody at Camp X-Ray on the Guantanamo Bay Naval Base (GBNB) in Cuba. Through their “next friends,” some of them brought three actions to challenge the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions on the merits.
In the Al-Odah case, the fathers and brothers of twelve Kuwaiti nationals detained at the GBNB sued the following seven defendants: the United States, the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Commander of Joint Task Force 160, and the Commandant of Camp X Ray/Camp Delta. They alleged that their detainees had been in Afghanistan and Pakistan as humanitarian volunteers and that local villagers turned bounty-hunters laid hands on them and turned them over to U. S. forces. The military sent them to GBNB sometime between January and March 2002.
These plaintiffs called upon the Great Writ, 28 U.S.C. Sections 2241 2242; the Alien Tort Claims Act, 28 U.S.C. Section 1350; and the Administrative Procedure Act. They claimed denials of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. The court was asked to issue a declaratory judgment and an injunction requiring the authorities to notify them of any charges against them, to allow them to consult with counsel and to have visits from their families.
There are three Rasul plaintiffs who are suing most of the same defendants as above. One is an Australian who was living in Afghanistan when the Northern Alliance captured him in December 2001. Another claims to be a British citizen who had gone to Pakistan for an arranged marriage some time after September 11, 2001. The third detainee was also British and alleged that he had gone to Pakistan after 9/11 to visit relatives and to continue his computer education.
The Rasul petitioners claim to being victimized by violations of due process under the Fifth and Fourteenth Amendments, of international law, and of military regulations; a breach of the War Powers Clause, and a contravention of Article I of the Constitution because of the President’s alleged suspension of the Great Writ. They seek habeas corpus release, an end to unlawful custody, access to counsel, an end to interrogations, and other relief.
In the third case, the wife of a Mr. Habib, an Australian citizen, sought relief similar to what is asked for in the first two cases. Defendants included the President, the Defense Secretary and two senior military officers. The complaint alleged that plaintiff went to Pakistan to find a job for himself and school for his children. After Pakistani authorities arrested him in October 2001, they transferred him to Egyptian authorities who handed him over to the U.S. military who had him brought to GBNB in May 2002. Invoking the provisions listed in the other two cases, he petitioned for release from detention, access to counsel, an end to interrogations and other relief.
The district court held that it lacked jurisdiction. Convinced that no court would have jurisdiction, it dismissed the complaint and the two habeas corpus petitions with prejudice. From the court’s analysis, all of the detainees’ claims went to the lawfulness of their custody and thus were cognizable only in habeas corpus. Relying upon Johnson v. Eisentrager, 339 U.S. 763 (1950), the court held that it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States. On plaintiffs’ appeal, the U.S. Court of Appeals for the District of Columbia Circuit affirms.
The Court first sketches the background of recent events. “In response to the attacks of September 11, 2001, and in the exercise of its constitutional powers, 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 attacks and recognized the President’s ‘authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.’ Authorization for Use of Military Force, Pub.L. No. 107 40, 115 Stat. 224, 224 (2001).”
“The President declared a national emergency, Proclamation No. 7453, Declaration of a National Emergency by Reason of Certain Terrorist Attacks, 66 Fed.Reg. 48,199 (Sept. 14, 2001), and, as Commander in Chief, dispatched armed forces to Afghanistan to seek out and subdue the al Qaeda terrorist network and the Taliban regime that had supported and protected it. During the course of the Afghanistan campaign, the United States and its allies captured the aliens whose next friends bring these actions.” [1136]
The Court then quotes a typical denial of being enemy combatants or enemy aliens from the Rasul petition. “The detained petitioners 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. On information and belief, they had no involvement, direct or indirect, in either the terrorist attacks on the United States September 11, 2001, or any act of international terrorism attributed by the United States to al Qaida or any terrorist group.”
The Court then formulates the first issue as whether the Supreme Court’s decision in Johnson v. Eisentrager, which the district court found dispositive, is distinguishable from the present cases on the ground that the prisoners there were “enemy aliens.”
The Eisentrager case arose from the following circumstances. After Germany’s surrender on May 8, 1945, but before Japan had given up, twenty one German civilians in China aided Japanese forces fighting against the United States by reporting on American troop movements. The Germans were captured, tried and convicted for breaching the laws of war by an American military commission in Nanking, and confined in the Landsberg prison in Germany, which was then controlled by the U.S. Army.
On behalf of himself and the twenty others, Eisentrager petitioned for writs of habeas corpus in the U.S. District Court for the District of Columbia. He claimed violations of the Constitution, other laws of the United States, and the 1929 Geneva Convention. The district court dismissed for lack of jurisdiction, but the court of appeals reversed.
The instant Court summarizes the Supreme Court’s rationale for agreeing with the district court. “[It] held that ‘the privilege of litigation’ had not been extended to the German prisoners. … The prisoners therefore had no right to petition for a writ of habeas corpus: ‘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.’”
“Moreover, ‘trials would hamper the war effort and bring aid and comfort to the enemy.’ Witnesses, including military officials, might have to travel to the United States from overseas. Judicial proceedings would engender a ‘conflict between judicial and military opinion’ and ‘would diminish the prestige of’ any field commander as he was called ‘to account in his own civil courts’ and would ‘divert his efforts and attention from the military offensive abroad to the legal defensive at home.’” [1139]
Apparently, the government had contended that petitioners here were “enemy aliens.” The Court rejects this notion. “[I]t follows that none of the Guantanamo detainees are within the category of ‘enemy aliens,’ at least as Eisentrager used the term. They are nationals of Kuwait, Australia, or the United Kingdom. Our war in response to the attacks of September 11, 2001, obviously is not against these countries. It is against a network of terrorists operating in secret throughout the world and often hiding among civilian populations. An ‘alien friend’ may become an ‘alien enemy’ by taking up arms against the United States, but the cases before us were decided on the pleadings, each of which denied that the detainees had engaged in hostilities against America.” [1140]
“Nonetheless 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.” [Id.]
Responding to arguments that many American constitutional guarantees apply globally, the Supreme Court rejected the proposition that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses. “The Court continued: ‘If the Fifth Amendment confers its rights on all the world … [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American Judiciary to assure them freedoms of speech, press, and assembly as in our First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.’ The passage of the opinion just quoted may be read to mean that the constitutional rights mentioned are not held by aliens outside the sovereign territory of the United States, regardless of whether they are enemy aliens. That is how later Supreme Court cases have viewed Eisentrager.” [1140-41]
“The consequence is that no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. Section 2241, to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States. We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not. This much is at the heart of Eisentrager. If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”
“Eisentrager itself directly tied jurisdiction to the extension of constitutional provisions: ‘in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.’ [Cite] Thus, the ‘privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection.’” [1141]
The detainees next dispute the assumption that they are not confined within any territory over which the U.S. is sovereign. They contend that the U.S., through the military, treats the naval base as a territory and exercises sovereignty over it.
The Court points out, however, that the U.S. has been in possession of the GBNB under an indefinite lease with Cuba originating in 1903 and modified in 1934. Article III of the original Lease declared that: “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba” over the naval base.
The Court rejects detainees’ reading of Eisentrager as using “territorial jurisdiction” and “sovereignty” interchangeably. “When the [Supreme] Court referred to ‘territorial jurisdiction,’ it meant the territorial jurisdiction of the United States courts, as for example in these passages quoted earlier: ‘in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.’”
“Sovereignty, on the other hand, meant then and means now supreme dominion exercised by a nation. The United States has sovereignty over the geographic area of the States and, as the Eisentrager Court recognized, over insular possessions. Guantanamo Bay fits within neither category.” [1143-44]
The Court then dismisses the fact that detainees also sought declaratory judgments and injunctions under the Alien Tort Claims Act (ATCA), 28 U.S.C. Section 1350. It provides that: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
“The holding in Eisentrager that ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign’ … – dooms these additional causes of action, even if they deal only with conditions of confinement and do not sound in habeas.” [1144]
“But as we have decided, the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts.”
“Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager.” [1145]
Citation: Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003).
Filed in: 2003 International Law Update, Issue4
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Despite requests for stay of execution from International Court of Justice, U.S. Supreme Court denies habeas corpus relief to convicted Paraguayan citizen for citizen’s failure to raise violation of Consular Convention before Virginia courts
Angel Francisco Breard was a 32-year-old citizen of Paraguay who had come to the United States in 1986. In 1993, a Virginia jury tried and convicted Breard for the attempted rape and capital murder of Ruth Dickie. The State scheduled the execution of Angel Francisco Breard for 9:00 p.m. on April 14, 1998.
At his trial in 1993, the State had put on potent evidence of guilt. From the stand, Breard admitted that he had killed Dickie, but only because his father in law had put a Satanic curse on him. On appeal, the Virginia Supreme Court affirmed Breard’s convictions and sentences, and the U.S. Supreme Court denied certiorari. The Virginia courts later denied him collateral relief as well.
In August 1996, Breard sought federal habeas corpus relief. In that petition, Breard contended for the first time that the federal court should overturn his conviction and sentence because of alleged violations of the Vienna Convention on Consular Relations (Convention), April 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820. In particular, Breard alleged that arresting authorities had failed to notify him that, as a foreign citizen, the Convention afforded him the right to get in touch with the Paraguayan Consulate.
The District Court denied relief. It concluded (1) that Breard had procedurally defaulted this claim when he failed to bring it up in state court and (2) that Breard could not show “cause and prejudice”� for this default as required by law. The U.S. Court of Appeals for the Fourth Circuit affirmed. Breard then sought certiorari from the U.S. Supreme Court.
Meanwhile, in September 1996, the Republic of Paraguay sued various Virginia officials in Federal District Court. Paraguay claimed that Virginia’s failure to provide Breard with his Convention rights had breached its own distinct rights under the Convention. The Consul General also raised a parallel § 1983 claim alleging a denial of his Convention rights.
The District Court, however, ruled that it had no subject-matter jurisdiction over these suits. Since Paraguay was not alleging a ‘continuing violation of federal law,’ it could not bring itself within an exception to Virginia’s Eleventh Amendment immunity from suit. The U.S. Court of Appeals for the Fourth Circuit affirmed. Paraguay has also asked the Supreme Court for a writ of certiorari.
On April 3, 1998, the Republic of Paraguay sued the United States in the International Court of Justice (ICJ), alleging that the United States had violated the Vienna Convention. Six days later, the ICJ noted jurisdiction. It also asked that the United States ‘take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings….’ The ICJ arranged for probable oral argument in November 1998.
To “enforce” the ICJ’s order, Breard then sought an original writ of habeas corpus and a stay of execution from the U.S. Supreme Court. Paraguay then petitioned to file an original action in that Court, as a case affecting foreign consuls.
In a per curiam opinion with three dissenting votes, the Supreme Court denies the petition for an original writ of habeas corpus, the motion for leave to file a bill of complaint, the petitions for certiorari, and the stay applications filed by Breard and Paraguay.
The Court first points out that Breard had failed to raise his Vienna Convention issues at any time in the Virginia Courts. It sees no merit in petitioners’ argument that a Treaty “trumps” a procedural default rule.
First, with due respect to the ICJ, Article 36(2) of the Vienna Convention provides that parties shall exercise their Convention rights in accordance with the “laws and regulations of the receiving State.” Under U.S. law, a petitioner’s prior failure to raise his Convention claims in the state courts precludes him from doing so on federal habeas corpus review.
Secondly, under U.S. Constitutional law, a later inconsistent federal statute nullifies the domestic effect of a prior international agreement to the extent of the conflict. Although the Convention has been in force since 1969, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996 before Breard had raised his Convention issue for the first time. AEDPA generally denies a federal evidentiary hearing if, as here, a state prisoner has not previously brought out the factual basis of his Treaty-based claim in state courts.
Moreover, the Court is unable to discern what adverse effect the lack of Consular advice might have had upon the outcome of Breard’s case. Thus, Breard had taken the stand against the advice of his American-trained lawyers. The possibility that he might have made better choices with foreign consular advice is speculative at best.
Paraguay’s suits fare no better. The Vienna Convention does not clearly provide that a foreign country can bring a private suit in U.S. courts to challenge the conviction and sentence of its citizen for lack of consular notification. Moreover, Paraguay’s reliance on a single, long-past violation of the Convention does not bring it within any exception to Virginia’s immunity from suit under the Eleventh Amendment. Nor is Paraguay, acting by its Consul General, a “person … within the jurisdiction of the United States” entitled to sue under § 1983.
Justices Stevens, Breyer and Ginsburg dissent. They see difficult and far-reaching issues in this case and complain that Virginia’s hasty execution schedule had effectively deprived the court of the benefits of fuller briefing and arguments on the merits of these issues.
[Editorial Note: Despite the urgings of Secretary of State Albright, Virginia authorities declined to stay Breard's execution and carried it out during the evening hours of April 14, 1998].
Citation: Breard v. Greene, No. 97-8214 (A-732) (U.S. S.Ct. April 14, 1998).
Filed in: 1998 International Law Update, Issue 4