Metropolitan News-Enterprise


Tuesday, November 19, 2002


Page 1


Court Rejects Challenge by Lawyers, Clergy to Guantanamo Detentions


By KENNETH OFGANG, Staff Writer/Appellate Courts


A coalition of lawyers, clergy and law professors lacks standing to challenge the detention of hundreds of prisoners captured in Afghanistan and now being held at the U.S. Naval Base at Guantanamo Bay in Cuba.

The coalition cannot sue as “next friend” of the prisoners, Judge Kim Wardlaw insisted, because it lacks a “significant relationship” with any of them.

The appellate panel upheld U.S. District Judge A. Howard Matz’s ruling on standing. But it vacated the rest of Matz’s order, in which he concluded that neither his court nor any other federal court had jurisdiction to hear the petition.

The district judge should not have addressed jurisdictional issues without having a petition brought by the prisoners or a proper next friend before him, Wardlaw said.

Sept. 11 Response

The prisoners, approximately 600 in number, were among thousands of al-Qaeda or Taliban fighters who were captured or surrendered after Congress authorized a U.S. military response to the attacks of Sept. 11 of last year, “an event forever seared upon the soul of America,” as Wardlaw put it.

The government says the men now being detained at what it has dubbed Camp X-Ray are the most dangerous of those taken prisoner in Afghanistan. They have been visited by representatives of the International Red Cross and by diplomats from their home countries, and allowed in some instances to write to family and friends, but do not have access to lawyers.

The government classifies the men as “enemy combatants” and argues that because they are being held outside the United States, the right of habeas corpus does not apply and no U.S. court can interfere with their confinement. Critics, including those who brought the case ruled on yesterday, say the prisoners are being confined without due process, and should be notified of the specific charges against them and given access to lawyers.

U.S. District Judge Colleen Kollar-Kotelly of the District of Columbia agreed with the government in a case decided last August, in which next-friend status was granted to representatives of 15 prisoners who are citizens of Australia, the United Kingdom, and Kuwait.

The next-friend doctrine is rooted in 17th Century English law, has long been recognized in this country, and was codified by Congress in 1948. The statute allows a federal court to consider a habeas corpus petition not signed by the prisoner if it is brought “by someone acting in his behalf.”

There are, Wardlaw wrote yesterday, “two firmly rooted prerequisites” that must be met for a next friend to have standing—there must be an adequate reason why the prisoner cannot bring the action, such as a physical or mental disability or lack of access to courts, and the next friend “must be truly dedicated to the interests of the person on whose behalf he seeks to litigate.”

‘Significant Relationship’

The Ninth Circuit, the judge wrote, has interpreted the “truly dedicated” requirement to mean that there must be a “significant relationship” between the prisoner and the petitioner.

Wardlaw cited cases recognizing prisoners’ blood relatives, previously retained attorneys, and, in one case, the brother-in-law of a juvenile prisoner, as next friends.

In contrast, she noted, the Supreme Court 50 years ago rejected a stranger’s petition on behalf of executed spies Julius and Ethel Rosenberg. And in a pair of rulings earlier this year, the Fourth U.S. Circuit Court of Appeals held that neither the public defender for the district in which he is being held nor a private citizen could file as next friend for Yaser Esam Hamdi, although the prisoner’s father could.

Hamdi is the Louisiana-born, Saudi Arabia-raised prisoner transferred from Camp X-Ray to the Norfolk Naval Brig in Virginia, and continues to be held there without access to counsel under the government’s definition of “enemy combatant.”

Wardlaw acknowledged that the prisoners at Guantanamo would have difficulty in petitioning on their own behalf, and said the coalition seeking next-friend status has a “genuine and sincere” concern for their rights. But the coalition’s relationship with the prisoners cannot be deemed “significant,” even under a broad definition, the appellate jurist wrote.

Senior Judge John Noonan concurred in the opinion, but dissented from the panel’s decision not to require the petitioners to pay the government’s costs on appeal.

Judge Marsha Berzon concurred separately. She argued that a petitioner may be “truly dedicated” to a prisoner without having a “significant relationship,” but said Matz’s ruling denying standing was correct because the coalition had not shown that it had even attempted to communicate with the prisoners.

University of Southern California law professor Erwin Chemerinsky, a member of the coalition who served as its co-counsel with Venice lawyer Stephen Yagman, said no decision had been made as to whether to seek en banc review.

The case is Coalition of Clergy, Lawyers, and Professors v. Bush, 02-55367.


Copyright 2002, Metropolitan News Company