Metropolitan News-Enterprise


Friday, December 19, 2003


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Ninth, Second Circuits Rule Terror Detainees Cannot Be Barred From Access to Lawyers, U.S. Courts


From Staff and Wire Service Reports


The Ninth and Second U.S. Circuit Courts of Appeals ruled yesterday that the U.S. military cannot indefinitely hold prisoners without access to lawyers or the American courts.

The Ninth Circuit ruling involved one of 660 “enemy combatants” being held at the U.S. naval base at Guantanamo Bay, Cuba. The Second Circuit decision involved American citizen Jose Padilla, who was seized in Chicago in an alleged plot to detonate a radioactive “dirty bomb” and declared an enemy combatant.

In the Ninth Circuit case, a divided panel overturned a ruling by U.S. District Judge A. Howard Matz of the Central District of California that the federal courts lacked jurisdiction to consider a habeas petition brought on behalf of detainee Salim Gherebi, a Libyan captured in Afghanistan. Matz found the Supreme Court’s 1950 decision in Johnson v. Eisentrager, 339 U.S. 763, to be controlling, though he said he was doing so reluctantly and expressed hope a higher court would “find a principled way” to provide the remedy sought.

  In Johnson, the Supreme Court rejected habeas petitions by German prisoners detained in Landsberg Prison, Germany, after being tried and sentenced by a U.S. Military Commission in China for offenses committed there after Germany’s surrender at the end of World War II.

  Writing for himself and Judge Susan B. Graber, Judge Stephen Reinhardt said Johnson barred only petitions by those who were not, and never had been, within U.S. territorial jurisdiction. He concluded that the Guantanamo base is within that jurisdiction.

  He also noted that the German prisoners were combatants in a declared war, unlike those involved in the Afghanistan fighting.

  “It is evident that the United States exercises sole territorial jurisdiction over Guantanamo,” Reinhardt said, noting that the U.S. “exercises exclusive criminal jurisdiction over all persons, citizens and aliens alike, who commit criminal offenses at the Base” under the terms of a lease entered into by President Theodore Roosevelt with the Cuban government in 1903 and a 1934 treaty.

  He rejected the government’s argument that sovereignty, rather than territorial jurisdiction, was necessary under Johnson, but went on to explain that—“at least for habeas purposes”—sovereignty was also present.

  “[T]the United States exercises total dominion and control over the territory in question and possesses rights of eminent domain, powers inherent in the exercise of sovereignty, while Cuba retains simply a contingent reversionary interest that will become effective only if and when the United States decides to relinquish its exclusive jurisdiction and control, i.e. sovereign dominion, over the territory,” he declared. “Thus, we hold that the prerequisite to the exercise of habeas jurisdiction is met in the case of Guantanamo, whether that prerequisite be ‘territorial jurisdiction’ or ‘sovereignty.’”

  A finding of sovereignty was also supported by that fact that the U.S. has used the base “in a manner directly inconsistent” with the terms of the lease and treaty despite repeated Cuban objections, and by the similarity between the Guantanamo lease and the Panama Canal Zone Treaty, concluded the same year, the judge said.

  Reinhardt pointed out that the Ninth Circuit was not addressing the question of whether a court would have jurisdiction to entertain habeas petitions challenging the decision of a military tribunal.

  He declared:

  “We recognize that the process due ‘enemy combatant’ habeas petitioners may vary with the circumstances and are fully aware of the unprecedented challenges that affect the United States’ national security interests today, and we share the desire of all Americans to ensure that the Executive enjoys the necessary power and flexibility to prevent future terrorist attacks. However, 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. Here, we simply cannot 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.”

  Senior United States District Judge Milton I. Shadur of  the Northern District of Illinois, sitting by designation, dissented, arguing the court should have delayed ruling in  the case until the U.S. Supreme Court decides Al Odah v. United States, 321 F.3d 1134, 1143 (D.C. Cir. 2003), in which it granted certiorari last month. In Al Odah, the D.C. Circuit found Johnson a bar to jurisdiction.

  But Reinhardt said the high court “has always encouraged the Courts of Appeal to resolve issues properly before them in advance of their determination by the Supreme Court, reasoning that having a variety of considered perspectives will aid the Court’s ultimate resolution of the issue in question.”

  The court did, however, issue an order staying its action until Al Odah is decided.

     The decision was the first federal appellate ruling to reject the Bush administration’s position on the Guantanamo detainees who have been without charges, some for nearly two years. The administration maintains that because the 660 men confined there were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial.

The Defense Department announced yesterday that the Pentagon had appointed a military defense lawyer for a terrorism suspect held at Guantanamo. Salim Ahmed Hamdan of Yemen becomes the second Guantanamo prisoner to be given a lawyer. Australian David Hicks got a lawyer earlier this month and recently met with an Australian legal adviser.

Both Hamdan and Hicks are among six Guantanamo Bay prisoners designated by President Bush as candidates for trials by special military tribunals. Neither Hamdan, Hicks nor the others detained in Cuba have been charged.

  Venice attorney Stephen Yagman of Yagman & Yagman & Reichmann & Bloomfield, who represented Gherebi, called the court’s decision “inconvenient for the Bush administration.”

  He said he was not surprised by the Ninth Circuit’s decision, but declined to predict how the high court might rule on the issue.

  “It’s hard to know what the Supremes will do without Diana Ross,” he commented.

  Yagman pointed out that the court’s decision got the first name of his client wrong, listing it as “Falen” instead of “Salim,” and said he has not yet decided whether he will seek a role in the oral arguments in Al Odah, which he noted are set for March.

In Padilla’s case, the Second Circuit ordered the former gang member released from military custody within 30 days and if the government chooses, tried in civilian courts. The White House said the government would appeal and seek a stay of the decision.

Padilla is accused of plotting to detonate a “dirty bomb,” which uses conventional explosives to disperse radioactive materials. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaida’s top terrorism coordinator. Zubaydah was arrested in Pakistan in March 2002.

Besides Padilla, only two other known people who are being detained in the United States have been designated as enemy combatants since the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar accused of being an al-Qaida sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.

An order by President Bush in November 2001 allows captives to be detained as “enemy combatants” if they are members of al-Qaida, engaged in or aided terrorism, or harbored terrorists. The designation may also be applied if it is “the interest of the United States” to hold an individual during hostilities.

The Justice Department this week said such a classification allows detainees to be held without access to lawyers until U.S. authorities believe they have disclosed everything they know about terrorist operations.

But Padilla’s detention as an enemy combatant, the New York-based court ruled 2-1, was not authorized by Congress and Bush could not designate him as an enemy combatant without such approval.

Padilla, a convert to Islam, was arrested in May 2002 at Chicago’s O’Hare airport as he returned from Pakistan. Within days, he was moved to a naval brig in Charleston, S.C. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaida’s top terrorism coordinator.

In ordering his release from military custody, the court said the government was free to transfer Padilla to civilian authorities who can bring criminal charges. If appropriate, Padilla also can be held as a material witness in connection with grand jury proceedings, the court said.

“As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation,” Judge Rosemary S. Pooler wrote.

“But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress,” Pooler added.

In a dissenting opinion, Judge Richard C. Wesley said that as commander in chief the president “has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens.”

The White House said the ruling was inconsistent with the president’s constitutional authority as well as with other court rulings.

“The president’s most solemn obligation is protecting the American people,” White House press secretary Scott McClellan said. “We believe the Second Circuit ruling is troubling and flawed.”

Padilla’s lawyer, Donna Newman, did not immediately return a telephone message for comment. Newman has battled in court to be able to meet with Padilla; she has not done so since he was designated an enemy combatant the month after he was arrested.

Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling “historic.”

“It’s a repudiation of the Bush administration’s attempt to close the federal courts to those accused of terrorism,” he said.

The Ninth Circuit case is Gherebi v. Bush, 03-55785. The Second Circuit case is Padilla v. Rumsfeld, 03-2235.


Copyright 2003, Metropolitan News Company