Metropolitan News-Enterprise


Friday, July 9, 2004


Page 1


Ninth Circuit Sends Guantanamo Detainee Case to D.C. Court


By KENNETH OFGANG, Staff Writer/Appellate Courts


A habeas corpus petition brought an behalf of a Libyan held as an “enemy combatant” at the U.S. naval base at Guantanamo Bay, Cuba will be sent to the U.S. District Court for the District of Columbia, rather than being returned to the Central District of California, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The nation’s capital is the correct venue for consideration of petitions brought by persons held at Guantanamo because there is no federal district court there, Judge Stephen Reinhardt explained.

The court issued yesterday’s decision in response to the June 28 rulings of the U.S. Supreme Court in Rasul v. Bush, 2004 WL 1432134, and Rumsfeld v. Padilla, 2004 WL 1432135.

Rasul held that the Guantanamo base is within the territorial jurisdiction of U.S. courts, enabling detainees there to seek judicial relief from continued detention. Padilla held that a person confined as an enemy combatant may normally challenge the detention only in the district in which he or she is held.

The Ninth Circuit panel held last December that the brother of Guantanamo detainee Salim Gherebi had the right to challenge Gherebi’s detention in U.S. courts. (Gherebi’s first name appears as “Falen” in the caption of the opinion, and as “Faren” in the text. Attorney Stephen Yagman, who brought the petition, said the correct name is Salim.)

District Court Ruling

A contrary ruling by U.S. District Judge A. Howard Matz of the Central District of California—who said he felt bound by a 50-year-old Supreme Court decision that the Rasul court found distinguishable—was reversed. But the appellate court delayed remanding the case pending the Supreme Court’s review of contrary rulings by the D.C. Circuit.

Those cases were consolidated and reversed in Rasul, in which the justices largely adopted the reasoning set forth in Reinhardt’s opinion for the Ninth Circuit last year.

The Supreme Court agreed with Reinhardt that Johnson v. Eisentrager, 339 U.S. 763, was not controlling, and the Ninth Circuit jurist reiterated that view yesterday.

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.

But Reinhardt, and the Supreme Court, said that the U.S. government possesses exclusive territorial jurisdiction over the Guantanamo base, under the terms of a lease entered into by President Theodore Roosevelt with the Cuban government in 1903 and a 1934 treaty.

The government argued that because the 660 men confined at Guantanamo were picked up overseas on suspicion of terrorism and are being held on foreign land, they could be detained indefinitely without charges or trial. President Bush has since designated several of the detainees as being subject to trial by military commissions, but none have been formally charged, and Reinhardt yesterday reiterated his view that the government’s position was “extreme” and raised “the gravest concerns under both American and international law.”

The judge wrote:

“Indeed, at oral argument, the government advised us that its position would be the same even if the claims were that it was engaging in acts of torture or that it was summarily executing the detainees. To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

Jurisdictional Issue

With respect to the issue of personal jurisdiction, the panel’s original ruling said the petition could be heard in the Central District of California, where Yagman filed it, but that the government could move for a change of venue if it chose. But in light of Padilla, Reinhardt said yesterday, the appropriate place to challenge Gherebi’s detention appears to be Washington, D.C., where the officials responsible for his confinement are based.

Senior Judge Milton I. Shadur of the Northern District of Illinois, who was assigned to the panel and joined Reinhardt last December, did so again yesterday. Judge Susan Graber, who dissented last year on the ground that the ruling was premature, dissented in part yesterday.

Graber said the Supreme Court’s remand order made it unnecessary to address Rasul. As to the effect of Padilla, Graber agreed with the majority.

The case is Gherebiv. Bush, 03-55785.


Copyright 2004, Metropolitan News Company