Appendix — Al Odah v. United States

»upreme Court, Ug.

r | FILED

O03 343 SEP 2 2003

No.

In The

Supreme Court of the Anited States

+

FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

¢

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

¢

THOMAS B. WILNER

Counsel of Record

NEIL H. KOSLOWE

KRISTINE A. HUSKEY

HEATHER LAMBERG KAFELE

SHEARMAN & STERLING LLP

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Telephone: 202-508-8000

Facsimile: 202-508-8100

Attorneys for Petitioners

September 2, 2003

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

OF THE APPENDIX

Page

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Court of Appeals Denial of Rehearing...................... App. 72

Court of Appeals Denial of Rehearing En Banc....... App. 73

Constitution of the United States

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Federal Statutory Provisions.....................cccssseseeeeees App. 76

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U.S. Department of the Army Field Manual 3-19.40..... App. 83

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International Covenant on Civil and Political

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American Declaration of the Rights and Duties of

TTD sicsaisahcehaetapilaniicipdidianpediinendandiddatenmiqunanaianneettemmescoenentes App. 87

American Convention on Human Richts ................. App. 88

Body of Principles for the Protection of All Persons

Under Any Form of Detention or Imprisonment .... App. 89

Leaflet Distributed by U.S. Forces in Afghanistan..... App. 91

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Excerpt from Department of Defense Interview

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Excerpt from Department of Defense Briefing by

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App. 1

APPENDIX

Notice: This opinion is subject to formal revision

before publication in the Federal Reporter or U.S.App.D.C.

Reports. Users are requested to notify the Clerk of any

formal errors in order that corrections may be made before

the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2002 Decided March 11, 2003

No. 02-5251

KHALED A. F. AL ODAH, ET AL.,

APPELLANTS

Vv.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Consolidated with

Nos. 02-5284, 02-5288

Appeals from the United States District Court

for the District of Columbia

(02cv00299)

(02cv00828)

(02cv01130)

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

App. 2

Thomas B. Wilner and Joseph Margulies argued the

cause for appellants. With them on the briefs were Neil H.

Koslowe, Michael Ratner, Beth Stephens, and L. Barrett

Boss.

William J. Aceves was on the briefs of amici curiae

The International Centre for the Legal Protection of

Human Rights and International Human Rights Organi-

zations and Law Scholars in support of appellants.

David P. Sheldon was on the brief of amicus curiae

National Association of Criminal Defense Lawyers in

support of appellants.

Paul D. Clement, Deputy Solicitor General, U.S.

Department of Justice, argued the cause for appellees.

With him on the brief were Roscoe C. Howard, Jr, US.

Attorney, Gregory G. Katsas, Deputy Assistant Attorney

General, U.S. Department of Justice, Gregory G. Garre

and David B. Salmons, Assistants to the Solicitor General,

Douglas N. Letter, Robert M. Loeb and Katherine S.

Dawson, Attorneys.

Daniel J. Popeo, Richard A. Samp and Paul D.

Kamenar were on the brief for amici curiae Washington

Legal Foundation, et al., in support of appellees.

Before: RANDOLPH and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

RANDOLPH.

Concurring opinion filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge: Through their “next

friends,” aliens captured abroad during hostilities in

App. 3

Afghanistan and held abroad in United States mili

custody at the Guantanamo Bay Naval Base in red

brought three actions contesting the legality and condi-

tions of their confinement. The ultimate question pre-

sented in each case is whether the district court had

jurisdiction to adjudicate their actions.

I.

The Constitution, as its preamble also declares

empowers Congress to “provide for the common Defence.”

U.S. Const. art. I, § 8. To that end, the Constitution gives

Congress the power “To raise and support Armies,” “To

provide and maintain a Navy,” “To declare War, grant

Letters of Marque and Reprisal, and make Rules concern-

ing Captures on Land and Water.” Jd. To that end as well

the Constitution invests the President with the “executive

Power,” and makes him “Commander in Chief” of the

country’s military. Art. II, §§ 1 & 2; see Ex parte Quirin

317 U.S. 1, 25-26 (1942).

| In response to the attacks of September 11, 2001, and

in the exercise of its constitutional powers, Congress

authorized the President “to use al] necessary and appro-

priate force against those nations, organizations, or

persons he determines planned, authorized, committed, or

aided” the attacks and recognized the President’s “author-

ity 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,

App. 4

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 cam-

paign, the United States and its allies captured the aliens

whose next friends bring these actions.

In one of the cases (Al Odah v. United States, No. 02-

5251), fathers and brothers of twelve Kuwaiti nationals

detained at Camp X-Ray in Guantanamo Bay brought an

action in the form of a complaint against the United

States, President George W. Bush, Secretary of Defense

Donald H. Rumsfeld, Chairman of the Joint Chiefs of Staff

Gen. Richard B. Myers, Brig. Gen. Rick Baccus, whom

they allege is the Commander of Joint Task Force 160, and

Col. Terry Carrico, the Commandant of Camp X-Ray/Camp

Delta. None of the plaintiffs’ attorneys have communicated

with the Kuwaiti detainees. The complaint alleges that the

detainees were in Afghanistan and Pakistan as volunteers

providing humanitarian aid; that local villagers seeking

bounties seized them and handed them over to United

States forces; and that they were transferred to Guan-

tanamo Bay sometime between January and March 2002.

A representative of the United States Embassy in Kuwait

informed the Kuwaiti government of their whereabouts.

Invoking the Great Writ, 28 U.S.C. §§ 2241-2242; the Alien

Tort Act, 28 U.S.C. § 1350; and the Administrative Proce-

dure Act, the Al Odah plaintiffs claim a denial 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.

They seek a declaratory judgment and an injunction

ordering that they be informed of any charges against

App. 5

them and requiring that they be permitted to consult with

counsel and meet with their families.

Rasul v. Bush (No. 02-5288) is styled a petition for a

writ of habeas corpus on behalf of three detainees, al-

though it seeks other relief as well. The next friends

bringing the petition are the father of an Australian

detainee, the father of a British detainee, and the mother

of another British detainee. Respondents are President

Bush, Secretary Rumsfeld, Col. Carrico, and Brig. Gen

Michael Lehnert, who is alleged to be the Commander of

Joint Task Force 160. The petition claims that the Austra-

lian detainee was living in Afghanistan when the North-

ern Alliance captured him in early December 2001; that

one of the British detainees traveled to Pakistan for an

arranged marriage after September 11, 2001; and that the

other British detainee went to Pakistan after that date to

visit relatives and continue his computer education. The

next friends learned of their sons’ detention at Guan-

tanamo Bay from their respective governments. The Rasul

petitioners claim violations of due process under the Fifth

and Fourteenth Amendments, international law, and

military regulations; a violation of the War Powers Clouse:

and a violation of Article I of the Constitution because of

the President’s alleged suspension of the writ of habeas

corpus. They seek a writ of habeas corpus, release from

unlawful custody, access to counsel, an end to interroga-

tions, and other relief.

Habib v. Bush (No. 02-5284) is also in the form of a

petition for writ of habeas corpus and is brought by the

wife of an Australian citizen, acting as his next friend

Naming President Bush, Secretary Rumsfeld, Brig. Gen.

Baccus, and Lt. Col. William Cline as defendants the

petition alleges that Habib traveled to Pakistan to look for

App. 6

employment and a school for his children; that after

Pakistani authorities arrested him in October 2001, they

transferred him to Egyptian authorities, who handed him

over to the United States military; and that the military

moved him from Egypt to Afghanistan and ultimately to

Guantanamo Bay in May 2002. Australian authorities

visited Guantanamo and issued a press release confirming

Habib’s presence there. The Habib petition, like the other

two cases, invokes the Due Process Clause of the Fifth

Amendment and cther constitutional provisions, the Alien

Tort Act, the Administrative Procedure Act, due process

under international law, and United States military

regulations. Habib seeks a writ of habeas corpus, legally

sufficient process to establish the legality of his detention,

access to counsel, an end to all interrogations of him, and

other relief.

The district court held that it lacked jurisdiction.

Believing no court would have jurisdiction, it dismissed

the complaint and the two habeas corpus petitions with

prejudice. Rasul v. Bush, 215 F. Supp. 2d 55, 56 (D.D.C.

9002). In the court’s view all of the detainees’ claims went

to the lawfulness of their custody and thus were cogniza-

ble only in habeas corpus. Jd. at 62-64. Relying upon

Johnson v. Eisentrager, 339 U.S. 763 (1950), the court

ruled that it did not have jurisdiction to issue writs of

habeas corpus for aliens detained outside the sovereign

territory of the United States. Rasul, 215 F. Supp. 2d at

72-73.

Il.

While these cases were pending, the Ninth Circuit

affirmed an order dismissing a habeas corpus petition for

all Guantanamo detainees on the ground that those

App. 7

bringing the action — clergy, lawyers, and law professors —

were not proper “next friends.” Coalition of Clergy, Law-

yers & Law Professors v. Bush, 310 F.3d 1153, 1165 (9th

Cir. 2002). In the cases before us, the government does not

question the “next friend” status of the individuals prose-

cuting the actions, at least insofar as they seek writs of

habeas corpus. There is a long history, going back to the

1600s in England, of “next friends” invoking the Great

Writ on behalf of prisoners who are unable to do so be-

cause of their inaccessibility. Whitmore v. Arkansas, 495

U.S. 149, 162 (1990). For the federal courts, Congress

codified the practice in 1948: a habeas corpus petition now

may be brought “by the person for whose relief it is in-

tended or by someone acting in his behalf.” 28 U.S.C.

§ 2242. The next friends in these cases have demonstrated

through affidavits that they are “truly dedicated to the

best interests of these individuals,” that they have a

“significant relationship” with the detainees, and that the

named detainees are inaccessible. Whitmore, 495 US. at

163-64. We shall therefore treat the cases as if the detain-

ees themselves were prosecuting the actions. Jd. at 163.

In each of the three cases, the detainees deny that

they are enemy combatants or enemy aliens. Typical of the

denials is this paragraph from the petition in Rasul:

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 indi-

rect, in either the terrorist attacks on the United

App. 8

States September 11, 2001, or any act of interna-

tional terrorism attributed by the United States

to al Qaida or any terrorist group.

(As the district court pointed out, an affidavit from the

father of the Australian detainee in Rasul admitted that

his son had joined the Taliban forces. Rasul, 215

F. Supp. 2d at 60 n.6.) Although the government asked the

district court to take judicial notice that the detainees are

“enemy combatants,” the court declined and assumed the

truth of their denials. Jd. at 67 n.12.

This brings us to the first issue: whether the Supreme

Court’s decision in Johnson v. Eisentrager, which the

district court found dispositive, is distinguishable on the

ground that the prisoners there were “enemy aliens.” In

the two and a half years leading up to the 1950 Kisen-

trager decision, “German enemy aliens confined by Ameri-

can military authorities abroad” filed more than 200

habeas corpus petitions invoking the Supreme Court's

original jurisdiction. 339 U.S. at 768 n.1. The Court denied

each petition, often with four Justices announcing that

they would dismiss for lack of jurisdiction. Id.; see Charles

Fairman, Some New Problems of the Constitution Follow-

ing the Flag, 1 STAN. L. REV. 587, 593-600 (1949). Justice

Jackson, the author of the Hisentrager opinion, recused

himself from each of the cases, doubtless because of his

service (after his appointment to the Court) as Represen-

tative and Chief Counsel at the Nazi war crime trials in

Nuremberg from 1945 to 1946. See Telford Taylor, The

Nuremberg Trials, 55 COLUM. L. REV. 488 (1955).

Eisentrager differed from the earlier World War II

habeas petitions. The case started not in the Supreme

Court, but in a district court; and the Germans seeking the

writ had not been convicted at Nuremberg. After Germany's

App. 9

surrender on May 8, 1945, but before the surrender of

Japan, twenty-one German nationals in China assisted

Japanese forces fighting against the United States. The

Germans were captured, tried by an American military

commission headquartered in Nanking, convicted of

violating the laws of war, and transferred to the Lands-

berg prison in Germany, which was under the control of

the United States Army. 339 U.S. at 765-66. One of the

prisoners, on behalf of himself and the twenty others,

sought writs of habeas corpus in the United States District

Court for the District of Columbia, claiming violations of

the Constitution, other laws of the United States, and the

1929 Geneva Convention. Jd. at 767. The district court

dismissed for lack of jurisdiction, but the court of appeals

reversed. Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir.

1949).

The Supreme Court, agreeing with the district court,

held that “the privilege of litigation” had not been ex-

tended to the German prisoners. 339 U.S. at 777-78.

(Although Eisentrager discussed only the jurisdiction of

federal courts, state courts do not have jurisdiction to

issue writs of habeas corpus for the discharge of a person

held under the authority of the United States. Turble’s

Case, 80 U.S. (13 Wall.) 397 (1872).) The prisoners there-

fore 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 jurisdic-

tion of any court of the United States.” 339 U.S. at 778.

Moreover, “trials would hamper the war effort and bring

aid and comfort to the enemy.” Id. at 779. Witnesses,

including military officials, might have to travel to the

App. 10

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.” Jd.

The detainees here are quite right that throughout its

opinion, the Supreme Court referred to the Eisentrager

prisoners as “enemy aliens.” The petitioners in Habib and

Rasul distinguish themselves from the German prisoners

on the ground that they have not been charged and that

the charges in Eisentrager are what rendered the prison-

ers “enemies.” For this they rely on Justice Brennan’s

dissenting opinion in United States v. Verdugo-Urquidez,

494 U.S. 259, 290-91 (1990). Brief for Appellants at 29 (No.

02-5284 et al.). Eisentrager, Justice Brennan wrote,

“rejected the German nationals’ efforts to obtain writs of

habeas corpus not because they were foreign nationals,

but because they were enemy soldiers.” 494 U.S. at 291

(Brennan, J., dissenting). This seems to us doubly mis-

taken. In the first place, the German prisoners were not

alleged to be “soldiers.” They were civilian employees of

the German government convicted of furnishing intelli-

gence to the Japanese about the movement of American

forces in China. Eisentrager, 339 U.S. at 765-66; Eisen-

trager, 174 F.2d at 962. In the second place, it was not

their convictions — which they contested — that rendered

them “enemy aliens.” The Supreme Court made this

explicit: “It is not for us to say whether these prisoners

were or were not guilty of a war crime,” 339 U.S. at 786;

“the petition of these prisoners admits[ ] that they are

really alien enemies,” id. at 784. The Court’s description of

the prisoners as “enemy aliens” rested instead on their

App. 11

status as nationals of a country at war with the United

States. Jd. at 769 n.2 (quoting Techt v. Hughes, 229 N.Y.

222, 229 (1920) (Cardozo, J.)). (Although Germany surren-

dered in 1945, the state of war with Germany did not end

until October 19, 1951. Pub. L. No. 82-181, 65 Stat. 451;

see United States ex rel. Jaegeler v. Carusi, 342 U.S. 347, 348

(1952) (per curiam).) This is the time-honored meaning of the

term. “Every individual of the one nation must acknowl-

edge every individual of the other nation as his own enemy

— because the enemy of his country.” The Rapid, 12 U.S. (8

ranch) 155, 161 (1814); see Guessefeldt v. McGrath, 342

U.S. 308 (1952); Lamar v. Browne, 92 U.S. 187, 194 (1875);

J. Gregory Sidak, War, Liberty, and Enemy Aliens, 67

N.Y.U. L. REv. 1402, 1406 (1992); see also The Alien

Enemy Act of 1798, 50 U.S.C. §§ 21-24. Despite the gov-

ernment’s argument to the contrary, it follows that none of

the Guantanamo detainees are within the category of

“enemy aliens,” at least as Eisentrager used the term.

“hey 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.

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 cstured,

they are now abroad, they are in the custody of the American

App. 12

military, and they have never had any presence in the

United States. For the reasons that follow we believe that

under Eisentrager these factors preclude the detainees

from seeking habeas relief in the courts of the United

States.

The court of appeals in Eisentrager had ruled that

“any person who is deprived of his liberty I y officials of the

United States, acting under the purported authority of

that Government,” and who can establish a violation of the

Constitution, “has a right to the writ.” 174 F.2d at 963.

This statement of law, unconstrained by the petitioner's

citizenship or residence, by where he is confined, by whom

or for what, “necessarily” followed — thought the court of

appeals — from the Fifth Amendment's application to “any

person” and from the court’s view that no distinction could

be made between “citizens and aliens.” Jd. at 963-65. As

the Supreme Court described it, the court of appeals thus

treated the right to a writ of habeas corpus as a “subsidi-

ary procedural right that follows from the possession of

substantive constitutional rights.” 339 U.S. at 781.

In answer the Supreme Court rejected the proposition

“that the Fifth Amendment confers rights upon all per-

sons, whatever their nationality, wherever they are located

and whatever their offenses,” id. at 783. The Court contin-

ued: “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.” Id. at 784. (Shortly before Germany’s

ee Se ee ae a

App. 13

surrender, the Nazis began training covert forces called

“werewolves” to conduct ierrorist activities during the

Allied occupation. See, e.g., http://www.archives.gov/iwg/

declassified_records/oss_records_263_wilhelm_hoettl.html.)

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 Eisen-

trager.

In 1990, for instance, the Court stated that Eisen-

trager “rejected the claim that aliens are entitled to Fifth

Amendment rights outside the sovereign territory of the

United States.” Verdugo-Urquidez, 494 U.S. at 269. After

describing the facts of Eisentrager and quoting from the

opinion, the Court concluded that with respect to aliens

“our rejection of the extraterritorial application of the

Fifth Amendment was emphatic.” Jd. By analogy, the

Court held that the Fourth Amendment did not protect

nonresident aliens against unreasonable searches or

seizures conducted outside the sovereign territory of the

United States. Citing Eisentrager again, the Court ex-

plained that to extend the Fourth Amendment to aliens

abroad “would have serious and deleterious consequences

for the United States in conducting activities beyond its

borders,” particularly since the government “frequently

employs Armed Forces outside this country,” id. at 273. A

decade after Verdugo-Urquidez, the Court - again citing

Eisentrager — found it “well established that certain

constitutional protections available to persons inside the

United States are unavailable to aliens outside of our

geographic borders.” Zadvydas v. Davis, 533 U.S. 678, 693

(2001).

App. 14

Although the Supreme Court’s statement in Verdugo-

Urquidez about the Fifth Amendment was dictum, our

court has followed it. In Harbury v. Deutch, 233 F.3d 596,

604 (D.C. Cir. 2000), rev’d on other grounds sub nom.

Christopher v. Harbury, 536 U.S. 403 (2002), we quoted

extensively from Verdugo-Urquidez and held that the

Court’s description of Eisentrager was “firm and consid-

ered dicta that binds this court.” Other decisions of this

court are firmer still. Citing Eisentrager, we held in

Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960),

that “non-resident aliens ... plainly cannot appeal to the

protection of the Constitution or laws of the United

States.” The law of the circuit now is that a “foreign entity

without property or presence in this country has no

constitutional rights, under the due process clause or

otherwise.” People’s Mojahedin Org. v. Dep't of State, 182

F.3d 17, 22 (D.C. Cir. 1999); see also 32 County Sovereignty

Comm. v. Dep't of State, 292 F.3d 797, 799 (D.C. Cir. 2002).

The consequence is that no court in this country has

jurisdiction to grant habeas relief, under 28 U.S.C. § 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

App. 15

Judiciary power to act.” 339 U.S. at 771. Thus, the “privi-

lege of litigation has been extended to aliens, whether

friendly or enemy, only because permitting their presence

in the country implied protection.” Jd. at 777-78 (emphasis

added). In arguing that Eisentrager turned on the status of

the prisoners as enemies, the detainees do not deny that if

they are in fact in that category, if they engaged in inter-

national terrorism or were affiliated with al Qaeda, the

courts would not be open to them. Their position is that

the district court should have made these factual determi-

nations at the threshold, before dismissing for lack of

jurisdiction. But the Court in Eisentrager did not decide to

avoid all the problems exercising jurisdiction would have

caused, only to confront the same problems in determining

whether jurisdiction exists in the first place.

It is true that after deciding jurisdiction did not exist,

the Supreme Court, in part IV of its Eisentrager opinion,

went on to consider and reject the merits of the prisoners’

claims. From this the detainees reason that the Court’s

holding must have been merely that the military courts,

rather than the civilian courts, had jurisdiction to try

charges of war crimes, not that the district court lacked

jurisdiction to adjudicate the habeas petition. We find it

impossible to read the Court’s statements — many of which

we have already quoted — about the courts not being open

to the prisoners as so limited. The discussion in part IV of

the Court’s opinion was extraneous. The dissenting Jus-

tices viewed it as such, calling part IV “gratuitous,”

“wholly irrelevant,” lending “no support whatever to the

Court's holding that the District Court was without

jurisdiction.” 339 U.S. at 792, 794 (Black, J., joined by

Douglas and Burton, JJ., dissenting). There is a ready

explanation for the Eisentrager Court’s method. Before

App. 16

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83

(1998), the Supreme Court (and the lower federal courts)

were not always punctilious in treating jurisdiction as an

antecedent question to the merits. The Court in Steel Co.

acknowledged as much. See 523 U.S. at 101. Part IV of

Eisentrager, whether an advisory opinion (see 523 U.S. at

101) or an alternative holding, does not detract from the

central meaning of the decision that the district court did

not have jurisdiction to issue writs of habeas corpus.

We have thus far assumed that the detainees are not

“within any territory over which the United States is

sovereign,” Eisentrager, 339 U.S. at 778. The detainees

dispute the assumption. They say the military controls

Guantanamo Bay, that it is in essence a territory of the

United States, that the government exercises sovereignty

over it, and that in any event Eisentrager does not turn on

technical definitions of sovereignty or territory.

The United States has occupied the Guantanamo Bay

Naval Base under a lease with Cuba since 1903, as modi-

fied in 1934. Lease of Lands for Coaling and Naval Sta-

tions, Feb. 23, 1903, U.S.-Cuba, T.S. No. 418 (6 Bevans

1113) (“1903 Lease”); Relations With Cuba, May 9, 1934,

U.S.-Cuba, T.S. No. 866 (6 Bevans 1161) (“1934 Lease”). In

the 1903 Lease, “the United States recognizes the continu-

ance of the ultimate sovereignty of the Republic of Cuba”

over the naval base. 1903 Lease, art. III. The term of the

lease is indefinite. 1903 Lease, ari. I; 1934 Lease, art. III

(“So long as the United States of America shall not aban-

don the said naval station at Guantanamo or the two

Governments shall not agree to a modification of its

present limits, the station shall continue to have the

territorial area that it now has... . ”).

App. 17

The detainees think criminal cases involving aliens

and United States citizens for activities at Guantanamo

Bay support their position. But those cases arose under

the special maritime and territorial jurisdiction, see 18

U.S.C. § 7. In United States v. Lee, 906 F.2d 117 (4th Cir.

1990) (per curiam), a Jamaican national was charged with

committing a crime at Guantanamo. The indictment invoked

the special maritime and territorial jurisdiction of the

United States pursuant to 18 U.S.C. §7 and 18 U.S.C.

§ 3238. Id. at 117 n.1. Extension of federal criminal law

' pursuant to these provisions does not give the United

States sovereignty over Guantanamo Bay any more than it

gives the United States sovereignty over foreign vessels

destined for this country because crimes committed

onboard are also covered. See 18 U.S.C. § 7(8).

The text of the leases, quoted above, shows that Cuba —

not the United States — has sovereignty over Guantanamo

Bay. This is the conclusion of Cuban Am. Bar Ass’n v.

Christopher, 43 F.3d 1412 (11th Cir. 1995). The Eleventh

Circuit there rejected the argument — which the detainees

make in this case — that with respect to Guantanamo Bay

“‘control and jurisdiction’ is equivalent to sovereignty.” Jd.

at 1425. The Supreme Court reached the same conclusion

in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381

(1948). In holding that a naval base in Bermuda, con-

trolled by the United States under a lease with Great

Britain, was outside United States sovereignty, the Court

took notice of the lease with Cuba for the Guantanamo

Bay Naval Base and the fact that it granted the United

States “substantially the same rights as it has in the

Bermuda lease.” Jd. at 383. The “determination of sover-

eignty over an area,” the Court held, “is for the legislative

and executive departments.” Jd. at 380. The contrary

App. 18

decision of the Second Circuit, on which the detainees rely

— Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326

(2d Cir. 1992), vacated as moot, Sale v. Haitian Centers

Council, Inc., 509 U.S. 918 (1993) — has no precedential

value because the Supreme Court vacated it. The decision

was, in any event, at odds with the Supreme Court's

reasoning not only in Vermilya-Brown, but also in Spelar v.

United States, 338 U.S. 217 (1949). The Second Circuit’s

result rested in very large measure on its extraterritorial

application of the Fifth Amendment to non-resident aliens,

see 969 F.2d at 1342-43, a position we rejected in People’s

Mojahedin Org. v. Dep't of State, 182 F.3d at 22, and in

Harbury v. Deutch, 233 F.3d at 604, and a position we reject

again today. And the Second Circuit thought it important

that the United States controlled Guantanamo Bay. 969 F.2d

at 1342-44. But under Eisentrager, control is surely not the

test. Our military forces may have control over the naval

base at Guantanamo, but our military forces also had control

over the Landsberg prison in Germany.

We also disagree with the detainees that the Eisentrager

opinion interchanged “territorial jurisdiction” with “sover-

eignty,” without attaching any particular significance to

either term. When the Court referred to “territorial jurisdic-

tion,” it meant the territorial jurisdiction of the United

States courts, as for example in these passages quoted

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” (339 U.S. at 771); and “the

scenes of their offense, their capture, their trial and their

punishment were all beyond the territorial jurisdiction of

United States courts” (id. at 778). Sovereignty, on the other

hand, meant then — and means now — supreme dominion

App. 19

exercised by a nation. The United States has sovereignty

over the geographic area of the States and, as the Eisen-

trager Court recognized, over insular possessions, id. at 780.

Guantanamo Bay fits within neither category.

As against this the detainees point to Ralpho v. Bell,

569 F.2d 607 (D.C. Cir. 1977). After World War II, the

United Nations designated the United States as adminis-

trator of the Trust Territory of Micronesia. Jd. at 612. No

country had sovereignty over the region, but the court

treated Micronesia as if it were a territory of the United

States, over which Congress could and did exercise its

power under Article IV of the Constitution. (The United

States did not hold the Trust Territory “in fee simple .. .

but rather as trustee,” a difference the court considered

irrelevant. Jd. at 619.) The court therefore described the

residents of Micronesia as being “as much American

subjects as those in other American territories.” Jd. In the

Micronesian Claims Act, Congress established a commis-

sion to distribute a fund for claims against the United

States for damages suffered during World War II. Because

Congress intended the Micronesia Trust Territory to be

treated as if it were a territory of the United States, the

court held that the right of due process applied to the

commission’s actions. Jd. at 629-30. Given the premises on

which the court acted, its holding is hardly surprising.

“Fundamental personal rights” found in the Constitution

apply in territories. See, e.g., Balzac v. Porto Rico, 258 U.S.

298, 312-13 (1922); see also Dorr v. United States, 195 U.S.

138, 148 (1904) (considering the law applicable in the

Philippines); 48 U.S.C. §1421b (Guam). Ralpho thus

establishes nothing about the sort of de facto sovereignty

the detainees say exists at Guantanamo. And its reasoning

does not justify this court, or any other, to assert habeas

App. 20

corpus jurisdiction at the behest of an alien held at a

military base leased from another nation, a military base

outside the sovereignty of the United States.

III.

In addition to seeking relief explicitly in the nature of

habeas corpus, the detainees sued for injunctions and

declaratory judgments under the Alien Tort Act, 28 U.S.C.

§ 1350, alleging that the United States is confining them

in violation of treaties and international law. 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 sover-

eign” (339 U.S. at 777-78) — dooms these additional causes

of action, even if they deal only with conditions of con-

finement and do not sound in habeas. See Wolff v. McDon-

nell, 418 U.S. 539, 554-55 (1974); Brown v. Plaut, 131 F.3d

163, 167 (D.C. Cir. 1997).

At the time of Eisentrager, the writ of habeas corpus

extended to prisoners “in custody in violation of the

Constitution or of a law or treaty of the United States,” 28

U.S.C. § 453 (1946). The current habeas statute, 28 U.S.C.

§ 2241(cX3), is very much the same. The prisoners in

Eisentrager alleged violations of the Constitution, federal

laws, and a treaty. So here. Each of the detainees alleges

violations of the Constitution, treaties, and laws of the

United States. The Alien Tort Act is a “law of the United

States” and, the detainees believe, so is some international

law. As to the latter, the theories are that federal common

law incorporates “customary international law” and that

the Alien Tort Act not only provides jurisdiction but also

creates a cause of action — theories the Second Circuit

App. 21

promulgated in Filartiga v. Pena-Irala, 630 F.2d 876, 885-

87 (2d Cir. 1980). 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; every-

thing 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.

IV.

We have considered and rejected the other arguments

the detainees have made to the court. The judgment of the

district court dismissing the complaint in No. 02-5251 and

the petitions for writs of habeas corpus in Nos. 02-5284

and 02-5288 for lack of jurisdiction is

Affirmed.*

App. 22

RANDOLPH, Circuit Judge, concurring:

I write separately to add two other grounds for reject-

ing the detainees’ non-habeas claims. But first some words

are in order regarding the Alien Tort Act, 28 U.S.C. § 1350:

The district courts shall have original jurisdic-

tion 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.

Three courts of appeals have decided that § 1350 not only

provides a federal forum but also creates a cause of action

for violations of the “law of nations.” The Second Circuit,

in the decision launching this development, held first, that

§ 1350 conferred jurisdiction over an action by citizens of

Paraguay against another citizen of that country for torts

allegedly committed in Paraguay; and second, that “cus-

tomary international law” is part of federal common law.

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). The

same court of appeals later reiterated that § 1350 provided

jurisdiction and gave aliens — in this instance, Muslim and

Croat citizens of Bosnia-Herzegovina — a cause of action

against the leader of the Bosnia Serbs for violations of “the

law of nations” and treaties. Kadic v. Karadzic, 70 F.3d

232, 241-44 (2d Cir. 1995); see Wiwa v. Royal Dutch Petro-

leum Co., 226 F.3d 88, 92-93 (2d Cir. 2000). The Ninth

Circuit followed suit, holding that § 1350 gave a district

court jurisdiction over the estate of the former Philippine

President Marcos although all plaintiffs and defendants

were Philippine nationals and although the torts, alleged

to violate international law, occurred entirely in the

Philippines. Trajano v. Marcos (In re Estate of Ferdinand

E. Marcos Human Rights Litigation), 978 F.2d 493, 499

(9th Cir. 1992); see also Hilao v. Estate of Marcos (In re

Estate of Ferdinand Marcos, Human Rights Litigation), 25

App. 23

F.3d 1467, 1473 (9th Cir. 1994); Martinez v. City of Los

Angeles, 141 F.3d 1373, 1383-84 (9th Cir. 1998). The

Eleventh Circuit joined these courts of appeals in holding

that § 1350 not only confers jurisdiction, but also gives

federal courts the power to “fashion domestic common law

remedies to give effect to violations of customary interna-

tional law.” Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th

Cir. 1996).

The meaning of § 1350 has been an open question in

our court. See Tel-Oren v. Libyan Arab Republic, 726 F.2d

774, 777 (D.C. Cir. 1984) (Edwards, J., concurring); id. at

800 (Bork, J., concurring); Sanchez-Espinoza v. Reagan,

770 F.2d 202, 20-07 (D.C. Cir. 1985). But what § 1350 does

not mean has been decided. In the Tel-Oren case both

Judge Bork and Judge Robb, in their separate concurring

opinions, rejected the Second Circuit’s Filartiga decision,

Judge Bork on the ground that § 1350 does not create a

cause of action, Judge Robb on the ground that Filartiga is

“fundamentally at odds with the reality of the interna-

tional structure and with the role of United States courts

within that structure.” See 726 F.2d at 801 (Bork, J.); id. at

826 n.5 (Robb, J.). Since then some of the opinions follow-

ing Filartiga maintain that Congress ratified its interpre-

tation of § 1350. See, e.g., Kadic, 70 F.3d at 241; Hilao, 25

F.3d at 1475; Abebe-Jira, 72 F.3d at 848; see also William

S. Dodge, The Historical Origins of the Alien Tort Statute:

A Response to the “Originalists,” 19 HASTINGS INTL &

Comp. L. REV. 221, 224, 256 (1996). The ratification

ergument rests on enactment of the Torture Victim Protec-

tion Act of 1991, which provides a cause of action for

damages to anyone — aliens and citizens alike — who

suffered torture anywhere in the world at the hands of any

individual acting under the law of any foreign nation. 28

App. 24

U.S.C. § 1350 note. The Torture Victim Act does not

contain its own jurisdictional provision. But it is clear that

any case brought pursuant to that statute would arise

under federal law and thus come within 28 U.S.C. § 1331,

the grant of general federal question jurisdiction. (I mean

to ‘mply nothing about the constitutionality of the stat-

ute.) The Alien Tort Act is thus beside the point: it confers

jurisdiction only over suits by aliens and only for viola-

tions of treaties and the law of nations. The House Report

on the torture victim bill did state that § 1350 “should

remain intact to permit suits based on other norms that

already exist or may ripen in the future into the rules of

customary international law.” Torture Victim Protection

Act of 1991, H.R. REP. No. 102-367, pt. 1, at 4 (1991). But

the statement of one congressional committee is by no

means a statement of “Congress,” as some have supposed;

the wish expressed in the committee’s statement is re-

flected in no language Congress enacted; it does not

purport to rest on an interpretation of § 1350; and the

statement itself is legislative dictum.

The detainees, or at least some of them, nevertheless

have urged us to follow the Filartiga line of cases. I see a

number of problems in doing so, in addition to those

mentioned by Judges Bork and Robb in Tel-Oren. To hold

that the Alien Tort Act creates a cause of action for treaty

violations, as the Filartiga decisions indicate, would be to

grant aliens greater rights in the nation’s courts than

American citizens enjoy. Treaties do not generally create

rights privately enforceable in the courts. Without author-

izing legislation, individuals may sue for treaty violations

only if the treaty is self-executing. See, e.g., Foster v.

Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.);

McKesson HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d

App. 25

1101, 1107 (D.C. Cir. 2001); Princz v. Federal Republic of

Germany, 26 F.3d 1166, 1174 n.1 (D.C. Cir. 1994); Holmes

v. Laird, 459 F.2d 1211, 1220 (D.C. Cir. 1972); Tel-Oren,

726 F.2d at 808-10 (Bork, J., concurring). To illustrate, the

detainees in this case claim that the military is confining

them in violation of the Geneva Convention of 1949. But

the second Geneva Convention, like the first, see Eisen-

trager, 339 U.S. at 789 n.14, is not self-executing for the

reasons stated by Judge Bork in Tel-Oren, 726 F.2d at 808-

09, and by the Fourth Circuit in Hamdi v. Rumsfeld, 316

F.3d 450, 468-69 (4th Cir. 2003). No American citizen,

therefore, has a cause of action under this treaty. Yet on

the basis of Filartiga, and the theory that the Alien Tort

Act itself creates a cause of action, aliens could bring suit

for its violation. Martinez, 141 F.3d at 1383-84, illustrates

the point. The Ninth Circuit, relying on § 1350, sustained

such a suit, brought by an alien against the City of Los

Angeles for actions occurring in Mexico in violation of the

“customary international law.” The court of appeals

derived this “customary international law” partly from the

International Covenant on Civil and Political Rights. But

the court neglected to mention that this multilateral

agreement creates no judicially enforceable rights and that

the Senate ratified the treaty on the basis that it “will not

create a private cause of action in U.S. courts.” S. EXEc.

REP. No. 102-23, at 9, 19, 23 (1992). I find it hard to

believe the First Congress, which enacted the Alien Tort

Act in 1789, intended to extend to aliens rights of actions

withheld from the citizens of this country.

Filartiga’s theory that federal common law incorpo-

rates customary international law also raises many issues.

The theory was necessary to sustain the constitutionality

of § 1350 as the Second Circuit interpreted and applied it.

App. 26

Early in our history the Supreme Court held unconstitu-

tional, in violation of Article III, the conferring of federal

jurisdiction over suits by an alien against an alien. Hodg-

son v. Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809). In

holding that federal common law somehow incorporates

customary international law, the Filartiga court placed the

case before it on the “arising under” head of jurisdiction

without mentioning Hodgson. See Illinois v. City of Mil-

waukee, 406 U.S. 91, 100 (1972). This avoided the diffi-

culty the Supreme Court’s decision posed, but it created

quite a few difficulties of its own.

For one thing, Article I, section 8, clause 10 of the

Constitution gives Congress the power to “define and

punish ... Offenses against the Law of Nations.” The

Framers’ original draft merely stated that Congress had

the power to punish offenses against the law of nations,

but when Gouverneur Morris of Pennsylvania objected

that the law of nations was “often too vague and deficient

to be a rule,” the clause was amended to its present form.

III ELLIoT’s DEBATES IN THE FEDERAL CONVENTION OF 1787

As REPORTED By JAMES MADISON 604 (James McClellan &

M.E. Bradford eds., rev. ed. 1989). I believe this clause in

Article I, section 8, particularly in light of the history just

recounted, makes it abundantly clear that Congress — not

the Judiciary — is to determine, through legislation, what

international law is and what violations of it ought to be

cognizable in the courts. Yet under Filartiga, it is the

courts, not Congress who decide both questions. It is no

answer to say that early Supreme Court cases looked to

the “law of nations.” The “law of nations” may have been

part of the general federal common law in the days before

Erie R.R. v. Tompkins, 304 U.S. 64 (1938), but even then

“the law of nations” did not present “any Federal question.”

App. 27

N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286, 286-87 (1875);

see Oliver Am. Trading Co. v. Mexico, 264 U.S. 440, 442-43

(1924). And for good reason. The political branches of our

government may influence but they by no means control

the development of customary international law. To have

federal courts discover it among the writings of those

considered experts in international law and in treaties the

Senate may or may not have ratified is anti-democratic

and at odds with principles of separation of powers. As

Judge Robb put it, the courts “ought not serve as debating

clubs for professors willing to argue over what is or what

is not an accepted violation of the law of nations.” Tel-

Oren, 726 F.2d at 827 (Robb, J., concurring). Nothing in

the Constitution expressly authorizes such free-wheeling

judicial power. After Erie brought an end to “general

federal common law,” federal common law has been mostly

interstitial or generated by the need for uniformity

throughout the States. See generally HENRY J. FRIENDLY,

BENCHMARKS 155-95 (1967). A federal common law of

customary international law is justified by neither consid-

eration. Congress, when it ratifies treaties, often does so

with reservations in order to avoid altering domestic law.

Yet treating customary international law as federal law

would alter domestic law because of the Supremacy

Clause. All of these problems, and more, including the lack

of historical support for the Filartiga theory, are spelled

out in Curtis A. Bradley & Jack L. Goldsmith, Customary

International Law as Federal Common Law: A Critique of

the Modern Position, 110 Harv. L. REV. 815 (1997), and in

a later article by the same authors, Federal Courts and the

Incorporation of International Law, 111 Harv. L. REV.

2260 (1998). But see Harold Hongju Koh, Is International

Law Really State Law?, 111 Harv. L. REv. 1824 (1998).

App. 28

As to the history of the Alien Tort Act, Judge Friendly

wrote: this “old but little used section is a kind of legal

Lohengrin; although it has been with us since the first

Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to

know whence it came.” JIT’ v. Vencap, Ltd., 519 F.2d 1001,

1015 (2d Cir. 1975). The original version read:

the district courts .. . shall also have cognizance,

concurrent with the courts of the several States,

or the circuit courts, as the case may be, of all

causes where an alien sues for a tort only in vio-

lation of the law of nations or a treaty of the

United States.

1 Stat. 73, 76-77 (1789). Two former members of our court

thought that § 1350 might have been meant to cover only

private, nongovernmental acts taken against aliens such

as piracy. Sanchez-Espinoza, 770 F.2d at 206 (Scalia, J.);

Tel-Oren, 726 F.2d at 813-14, 822 (Bork, J., concurring).

“[M]ore recent research of a competent scholar” (Erie R.R.,

304 U.S. at 72) has shed new light on the origin of § 1350

and the purpose of the First Congress in enacting it. See

Joseph Modeste Sweeney, A Tort Only in Violation of the

Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445

(1995). Professor Sweeney marshals a vast amount of

historical research on eighteenth century “prize law,”

which allowed private vessels having a marque to capture

enemy ships. When the Articles of Confederation were in

effect, state courts adjudicated claims by alien shipowners

seeking the return of their captured vessels and repara-

tions for the damages caused by the seizure. Adoption of

the Constitution and the passage of the First Judiciary Act

gave the federal courts exclusive jurisdiction in admiralty

and thus exclusive jurisdiction over suits brought to

recover ships captured in prize. There was still a question

App. 29

whether state courts had jurisdiction over cases in which

the alien sued not for return of the ship, but only for

reparations. It was only these cases, Professor Sweeney

postulates, that the Alien Tort Act’s author, Oliver Ells-

worth, and his congressional colleagues, intended to cover

by making clear that if the alien shipowner’s suit sought

only reparations, the state courts would have jurisdiction

concurrent with the federal covrts. Hence the words in the

statute “for a tort only.” If Professor Sweeney is correct,

the Alien Tort Act today is moribund, as in fact it had been

for nearly two hundred years until the Second Circuit

resuscitated it.

In view of my doubts about Filartiga, and the Tel-Oren

mrajority’s rejection of it, we might go ahead in this case

and decide what § 1350 does mean. But it is unnecessary

to do so, not only because LHisentrager disposes of the

cases, but also because the detainees’ treaty and interna-

tional law claims are barred by sovereign immunity.

Before explaining why, I need to add a disclaimer. At oral

argument, the question arose whether next friend status

may be recognized for suits under § 1350. “Some courts

have permitted ‘next friends’ to prosecute actions outside

the habeas corpus context on behalf of infants, other

minors, and adult mental incompetents.” Whitmore v.

Arkansas, 495 U.S. 149, 162 n.4 (1990). Here, the argu-

ment for the next friend device is that the detainees are

allegedly barred from talking with anyone about bringing

lawsuits on their behalf. The parties have not briefed the

questions this argument raises and I express no opinion on

its validity.

The United States or its officers may be sued only if

there is a waiver of sovereign immunity. See, e.g., Dep't of

Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have

App. 30

held that the Alien Tort Act, whatever its meaning, does

not itself waive sovereign immunity. Industria Panifica-

dora, S.A. v. United States, 957 F.2d 886, 886 (D.C. Cir.

1992) (per curiam); Sanchez-Espinoza, 770 F.2d at 207; see

Canadian Transp. Co. v. United States, 663 F.2d 1081,

1092 (D.C. Cir. 1980). The detainees therefore rely on the

waiver provision in the Administrative Procedure Act, 5

U.S.C. § 702, which states: “An action in a court of the

United States seeking relief other than money damages

and stating a claim that an agency or an officer or em-

ployee thereof acted or failed to act in an official capacity

_.. shall not be dismissed ... on the ground that it is

against the United States. ...”

Although relying on the APA’s waiver for agencies, the

detainees do not identify which “agency” of the United

States they have in mind. They have sued the President in

each case, but the President is not an “agency” under the

APA and the waiver of sovereign immunity thus does not

apply to him. See Franklin v. Massachusetts, 505 U.S. 788,

800-01 (1992); Armstrong v. Bush, 924 F.2d 282, 289 (D.C.

Cir. 1991). This leaves the military. The APA specifically

excludes from its definition of “agency” certain functions,

among which is “military authority exercised in the field

in time of war or in occupied territory.” 5 U.S.C.

§§ 551(1G), 701(b 1G); see id. §§ 553(aX1) & 554(a\4),

exempting military “functions” from the APA's require-

ments for rulemaking and adjudication; United States ex

rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 375

n.2 (2d Cir. 1968) (Friendly, J.). The district court ruled, in

an alternative holding, that because of the military func-

tion exclusion, the APA does not waive sovereign immu-

nity. Rasul v. Bush, 215 F. Supp. 2d 55, 64 n.10 (D.D.C.

2002). I believe this is correct.

App. 31

Each of the detainees, according to their pleadings,

was taken into custody by American armed forces “in the

field in time of war.” I believe they remain in custody “in

the field in time of war.” It is of no moment that they are

now thousands of miles from Afghanistan. Their detention

is for a purpose relating to ongoing military operations

and they are being held at a military base outside the

sovereign territory of the United States. The historical

meaning of “in the field” was not restricted to the field of

battle. It applied as well to “organized camps stationed in

remote places where civil courts did not exist,” Kinsella v.

United States ex rel. Singleton, 361 U.S. 234, 274 (1960)

(Whittaker, J., joined by Stewart, J., concurring in part

and dissenting in part). To allow judicial inquiry into

military decisions after those captured have been moved to

a “safe” location would interfere with military functions in

a manner the APA’s exclusion meant to forbid. We ac-

knowledged as much in Doe v. Sullivan, 938 F.2d 1370,

1380 (D.C. Cir. 1991), when then-Judge Ruth Bader

Ginsburg stated for the court that the APA’s military

function exclusion applied to cases in which a court was

asked to “review military commands made ... in the

aftermath of [ } battle.” It is also of no moment that the

detainees were captured without Congress having de-

clared war against any foreign state. “Time of war,” as the

APA uses it, is not so confined. The military actions

ordered by the President, with the approval of Congress,

are continuing; those military actions are part of the war

against the al Qaeda terrorist network; and those actions

constitute “war,” not necessarily as the Constitution uses

the word, but as the APA uses it. See Campbell v. Clinton,

203 F.3d 19, 29-30 (D.C. Cir. 2000) (Randolph, J., concur-

ring in the judgment); Mitchell v. Laird, 488 F.2d 611, 613

(D.C. Cir. 1973). The detainees are right not to contest this

App. 32

point. To hold that it is not “war” in the APA sense when

the United States commits its armed forces into combat

without a formal congressional declaration of war would

potentially thrust the judiciary into reviewing military

decision-making in places and times the APA excluded

from its coverage.

I would therefore hold that the detainees cannot

invoke the APA’s waiver of sovereign immunity and that

the district court correctly dismissed their claims under

the Alien Tort Act for this additional reason.

I would also hold that the judicial review provisions of

the APA, including the waiver of sovereign immunity, do

not apply because the military decisions challenged here

are “committed to agency discretion by law.” 5 U.S.C.

§ 701(aX(2). This exclusion applies when “a court would

have no meaningful standard against which to judge the

agency's exercise of discretion.” Heckler v. Chaney, 470

U.S. 821, 830 (1985). The military's judgment about how to

confine the detainees necessarily depends upon “‘a compli-

cated balancing of a number of factors which are particu-

larly within its expertise.’” Lincoln v. Vigil, 508 U.S. 182,

193 (1993) (quoting Heckler, 470 U.S. at 831). The level of

threat a detainee poses to United States interests, the

amount of intelligence a detainee might be able to provide,

the conditions under which the detainee may be willing to

cooperate, the disruption visits from family members and

lawyers might cause — these types of judgments have

traditionally been left to the exclusive discretion of the

Executive Branch, and there they should remain. See Natl

Fed’n of Fed. Employees v. United States, 905 F.2d 400,

406 (D.C. Cir. 1990); Schonbrun, 403 F.2d at 375 n.2.

App. 33

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHAFIQ RASUL,

SKINA BIBI, as Next Friend

of Shafiq Rasul, et al.,

Petitioners. Civil Action No.

im 02-299 (CKK)

GEORGE WALKER BUSH,

President of the

United States, et al.,

Respondents.

FAWZI KHALID ABDULLAH

FAHAD AL ODAH, et al.,

Plaintiffs,

v.

UNITED STATES OF

AMERICA, et al.,

Defendants.

Civil Action No.

02-828 (CKK)

MEMORANDUM OPINION

(Filed July 30, 2002)

I. INTRODUCTION

Presently before the Court are two cases involving the

federal government's detention of certain individuals at

the United States Naval Base at Gvantanamo Bay, Cuba.

The question presented to the Court by these two cases is

whether aliens held outside the sovereign territory of the

United States can use the courts of the United States to

App. 34

pursue claims brought under the United States Constitu-

tion. The Court answers that question in the negative and

finds that it is without jurisdiction to consider the merits

of these two cases. Additionally, as the Court finds that no

court would have jurisdiction to hear these actions, the

Court shall dismiss both suits with prejudice.

Throughout their pleadings and at oral argument,

Petitioners and Plaintiffs contend that unless the Court

assumes jurisdiction over their suits, they will be left

without any rights and thereby be held incommunicado. In

response to this admittedly serious concern, the govern-

ment at oral argument, conceded that “there’s a body of

international law that governs the rights of people who are

seized during the course of combative activities.” Tran-

script of Motion Hearing, June 26, 2002 (“Tr.”) at 92. It is

the government’s position that “the scope of those rights

are for the military and political branches to determine —

and certainly that reflects the idea that other countries

would play a role in that process.” Jd. at 91. Therefore, the

government recognizes that these aliens fall within the

protections of certain provisions of international law and

that diplomatic channels remain an ongoing and viable

means to address the claims raised by these aliens.’ While

' The Court notes that, at least for Petitioner David Hicks in the

Rasul case, diplomatic efforts by the Australian government have

already commenced. First Am. Pet. for Writ of Habeas Corpus (“Am.

Pet.”), Ex. C., “Affidavit of Stephen James Kenny,” Attach. 2 (Letter

from Robert Cornall, Australian Attorney-General’s Office to Stephen

Kenny, counsel for Petitioner Terry Hicks) (“Australia has indicated to

the United States that it is appropriate that Mr Hicks remain in U.S.

military custody with other detainees while Australia works through

complex legal issues and conducts further investigations. .. . Australian

(Continued on following page)

App. 35

these two cases provide no opportunity for the Court to

address these issues, the Court would point out that the

notion that these aliens could be held incommunicado

from the rest of the world would appear to be inaccurate.

After reviewing the extensive briefings in these cases,

considering the oral arguments of the parties and their

oral responses to the Court’s questions, and reflecting on

the relevant case law, the Court shall grant the govern-

ment’s motion to dismiss in both cases on the ground that

the Court is without jurisdiction to entertain these claims.’

authorities have been granted access to Mr Hicks and will be granted

further access if required.”).

* In reaching its decision in the Rasul case, the Court considered

the First Amended Petition for Writ of Habeas Corpus, the Exhibits to

the Amended Petition for Writ of Habeas Corpus, the Memorandum in

Support of the Amended Petition for Writ of Habeas Corpus, Respon-

dents’ Motion to Dismiss Petitioners’ First Amended Petition for Writ of

Habeas Corpus, Petitioners’ Memorandum in Opposition to Respon-

dents’ Motion to Dismiss, and Respondents’ Reply in Support of Their

Motion to Dismiss Petitioners’ First Amended Petition for Writ of

Habeas Corpus. In reaching its decision in the Odah case, the Court

considered the Amended Complaint, Plaintiffs’ Motion for a Preliminary

Injunction, Plaintiffs’ Request for Expeditious Hearing on Plaintiffs’

Motion for a Preliminary Injunction and Supporting Statement of the

Facts that Make Expedition Essential, Defendants’ Motion to Dismiss

Plaintiffs’ Complaint and Motion for a Preliminary Injunction, Plain-

tiffs’ Opposition to Defendants’ Motion to Dismiss Plaintiffs’ Complaint

and Motion for a Preliminary Injunction, Defendants’ Reply in Support

of Motion to Dismiss, Plaintiffs’ Opposition to Defendants’ Motion for

Leave to Late File Their Reply In Support of Defendants’ Motion to

Dismiss and Response to Plaintiffs’ Request for Expeditious Hearing,

Plaintiffs’ Consent Motion for Leave to File Post-Argument Brief

Correcting Erroneous Statements by Defense Counsel at Oral Argu-

ment, Defendants’ Response to Plaintiffs’ Post-Argument Brief, and

— Reply to Defendants’ Response to Plaintiffs’ Post-Argument

rief.

App. 36

II. PROCEDURAL HISTORY

Petitioners in Rasul v. Bush, Civil Action No. 02-299,

filed their case on February 19, 2002, and have styled

their action as a petition for writ of habeas corpus. Peti-

tioner Shafiq Rasul and Asif Iqbal are citizens of the

United Kingdom and are presently held in Respondents’

custody at the United States Naval Base at Guantanamo

Bay, Cuba. Am. Pet. 74 10, 14. Petitioner David Hicks is

an Australian citizen who is also detained by Respondents

at the military base at Guantanamo Bay. Id. 4 5. Also

included in the Petition are Skina Bibi, mother of Shafiq

Rasul, Mohammed Iqbal, father of Asif Iqbal, and Terry

Hicks, father of David Hicks. Petitioners request, inter

alia, that this Court “[o]rder the detained petitioners

released from respondents’ unlawful custody,” “[o]rder

respondents to allow counsel to meet and confer with the

detained petitioners, in private and unmonitored attorney-

client conversations,” and “[o]rder respondents to cease all

interrogations of the detained petitioners, direct or indi-

rect, while this litigation is pending.” Am. Pet., Prayer for

Relief, 74] 4-6.

Plaintiffs in Odah v. United States, Civil Action No.

02-828, filed their action on May 1, 2002. The Odah case

involves the detention of twelve Kuwaiti nationals who are

currently being held in the custody of the United States at

the United States Naval Base at Guantanamo Bay, Cuba.

Am. Compl. at 4. The action is concurrently brought by

twelve of their family members who join the suit and

speak on behalf of the individuals in United States cus-

tody. Id. Unlike Petitioners in Rasul, the Odah Plaintiffs

disclaim that their suit seeks release from confinement.

App. 37

Rather, Plaintiffs in Odah ask this Court to enter a pre-

liminary and permanent injunction prohibiting the gov-

ernment from refusing to allow the Kuwaiti nationals to

“meet with their families,” “be informed of the charges, if

any, against them,” “designate and consult with counsel of

their choice,” and “have access to the courts or some other

impartial tribunal.” Jd. 4 40.’ Plaintiffs’ Amended Complaint

* After full briefing and oral argument on Defendants’ Motion to

Dismiss in the Odah case, Plaintiffs filed an Amended Complaint,

which they filed as of right pursuant to Rule 15 of the Federal Rules of

Civil Procedure. In a conference call with the Court, Plaintiffs repre-

sented that there were three specific differences between the Amended

Complaint and the original Complaint. First, the Amended Complaint

added two new plaintiffs to the action, a Kuwaiti national held at the

military base at Guantanamo Bay and a member of his family who

brings the suit on his behalf. Originally, there had only been twenty-two

Plaintiffs. Compare Compl. 79 3, 4, with Am. Compl. {7 3, 4. Second,

Plaintiffs abandoned their request that the Court order Defendants to

turn Plaintiffs, held at the military base at Guantanamo Bay, over to

the Kuwaiti government. Compl. 7 44. Third, Plaintiffs made an effort

to clarify the four specific requests for relief that they seek in this case.

Compare Compl. { 42, with Am. Compl. { 40.

Ordinarily, when the Court receives an amended complaint after a

defendant files a motion to dismiss, it denies the motion to dismiss

without prejudice and requests that the defendant re-file the motion

based on the allegations presented in the amended complaint. In this

case, based on the Court’s review of the Amended Complaint, it appears

that such a procedure would be a useless exercise since the legal

theories underlying Defendants’ present motion to dismiss will not be

affected by the filing of the Amended Complaint. Defendants agree with

the Court and contend that the amendments will not impact upon the

Court’s ruling on the motion to dismiss. Accordingly, the Court will

apply Defendants’ motion to dismiss to Plaintiffs’ Amended Complaint.

See Nix v. Hoke, 62 F. Supp. 2d 110, 115 (D.D.C. 1999) (citing cases); see

also 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1476 (2d ed. 1990) (“[DJefendants should not be required to

file a new motion to dismiss simply because an amended pleading was

introduced while their motion was pending. If some of the defects raised

(Continued on following page)

App. 38

contains three counts. First, Plaintiffs contend that

Defendants’ conduct denies the twelve Kuwaiti nationals

due process in violation of the Fifth Amendment to the

Constitution. Jd. 937. Second, Plaintiffs argue that

Defendants’ actions violate the Alien Tort Claims Act, 28

U.S.C. § 1350. Id. 938. Lastly, Plaintiffs allege that

Defendants’ conduct constitutes arbitrary, unlawful, and

unconstitutional behavior in violation of the Administra-

tive Procedure Act, 5 U.S.C. §§ 555, 702, 706. Id. ¥ 39.

In the Rasul case, Respondents moved to dismiss the

First Amended Petition for Writ of Habeas Corpus on

March 18, 2002. This motion was fully briefed on April 29,

2002. On May 1, 2002, the Odah case was filed and Plain-

tiffs designated it as related to the Rasul matter. Thus,

Odah was assigned to this Court. Plaintiffs in Odah

moved for a preliminary injunction at the time they filed

their suit. Instead of filing a memorandum in opposition to

the motion for preliminary injunction, Defendants in the

Odah case moved to dismiss the action. That motion was

fully briefed on June 14, 2002.‘

in the original motion remain in the new pleading, the court simply

may consider the motion as being addressed to the amended pleading.

To hold otherwise would be to exalt form over substance.”).

* The Court’s initial briefing schedule in the Odah case did not

contemplate that Defendants would be moving to dismiss the entire

action. Rather the Court’s briefing schedule set forth a date for Defen-

dants to respond to Plaintiffs’ motion for preliminary injunction. Odah

v. United States, Civ. No. 02-828 (D.D.C. May 14, 2002) (order setting

forth briefing schedule). Instead of filing an opposition to the motion for

a preliminary injunction, on the date that their opposition to the

preliminary injunction was due, Defendants moved to dismiss the

entire case (and, by inference, the motion for preliminary injunction).

Plaintiffs filed a timely opposition to Defendant’s motion. Defendants

(Continued on following page)

App. 39

At the time the Court received the motion to dismiss

in the Odah matter, it became obvious to the Court that

the government was moving to dismiss both cases primar-

ily on jurisdictional grounds. Accordingly, the Court found

it appropriate to make a threshold ruling on the jurisdic-

tional question in both cases before conducting any further

proceedings. Mindful of the importance of these suits,

which raise concerns about the actions of the Executive

Branch, the Court heard oral argument on the govern-

ment’s motion to dismiss in both cases on June 26, 2002.

Ill. FACTUAL BACKGROUND’

A. Rasul v. Bush

Little is known about Petitioner David Hicks except

that he was allegedly living in Afghanistan at the time of

his seizure by the United States Government. Am. Pet.

{ 22. As for Petitioner Rasul, in the summer of 2001, he

then filed a reply, which Plaintiffs argued was inappropriate since the

Court’s initial briefing schedule did not set a date for Defendants to file

a reply. However, when the Court set the initial briefing schedule, it

was only concerned with receiving a response to the motion for prelimi-

nary injunction. Defendants were clearly within their right to move for

dismissal of the entire action, which would permit them the opportunity

to file a reply to their motion to dismiss. Although Defendants filed

their reply late, the Court shall grant them leave to file the reply. To the

extent that Plaintiffs’ opposition to Defendants’ filing of a reply brief

responds to new issues first raised in Defendants’ reply, the Court shall

consider Plaintiffs’ response as a surreply to Defendants’ motion to

* For purposes of the instant motions to dismiss, the allegations of

the Amended Petition/Amended Complaint are taken as true. The facts

in this section are presented accordingly, and do not constitute factual

findings by this Court.

App. 40

allegedly took a hiatus from studying for his computer

engineering degree to travel. Id. ¥ 24. Allegedly, Petitioner

Rasul’s brother convinced him to move to Pakistan “to visit

relatives and explore his culture.” Jd. Petitioner Rasul left

the United Kingdom after September 11, 2001, and alleg-

edly traveled to Pakistan solely to attempt to continue his

education at less expense than it would cost to take

similar courses in the United Kingdom. /d. Petitioner

Rasul allegedly stayed with an Aunt in Lahore, Pakistan

before engaging in further travel within that country. Id.

Allegedly, forces fighting against the United States cap-

tured and kidnapped Petitioner Rasul after he left Lahore.

Id.

As for Petitioner Iqbal, it is alleged that in July of

2001, his family arranged for him to marry a woman living

in the same village in Pakistan as Petitioner Iqbal’s father.

Id. 4 23. After September 11, 2001, Petitioner Iqbal left

the United Kingdom and allegedly traveled to Pakistan

solely for the purpose of getting married. Jd. In early

October of 2001, shortly before the marriage, Petitioner

Iqbal’s father allegedly allowed Petitioner Iqbal to leave

the village briefly. Jd. After leaving the village, forces

working in opposition to the United States allegedly

captured Petitioner Iqbal. Jd.

Petitioners Rasul, Iqbal, and Hicks were picked up in

a region of the world where the United States is actively

engaged in military hostilities authorized by a Joint

Resolution of the United States Congress, passed on

September 18, 2001, in the wake of the September 11, ©

2001, terrorist attacks. The Joint Resolution authorizes

the President to:

App. 41

use all necessary and appropriate force against

those nations, organizations, or persons he de-

termines planned, authorized, committed, or

aided the terrorist attacks that occurred on Sep-

tember 11, 2001, or harbored such organizations

or persons, in order to prevent any future acts of

international terrorism against the United States

by such nations, organizations or persons.

Authorization for Use of Military Force, Pub. L. No. 107-

40, § 2, 115 Stat. 224 (2001) (cited in Am. Pet. ¥ 25). In the

course of the military campaign authorized by the Joint

Resolution, the United States attacked the Taliban, the

ruling government of Afghanistan. Am. Pet. { 25. While

seeking to overthrow the Taliban, the United States

provided military assistance to the Northern Alliance, “a

loosely knit coalition of Afghani and other military groups

opposed to the Taliban Government.” Jd. { 26.

The Northern Alliance captured Petitioner David

Hicks in Afghanistan and transferred custody of him to

the United States on December 17, 2001. Jd. 4 27. The

precise circumstances surrounding Petitioner Rasul’s and

Petitioner Iqbal’s capture are unknown. However, they

appear to have been transferred to United States control

in early December of 2001. Id. 4 28.

It is alleged in the Amended Petition that at no time

did any of the Petitioners in United States custody volun-

tarily join any terrorist force. Id. ¥ 30.° Additionally, if any

* While denying a role in any terrorist activity, Petitioners in their

Amended Petition for Writ of Habeas Corpus conspicuously neglect to

deny that they took up arms for the Taliban. In fact, in an exhibit

attached to the Amended Petition, Petitioner Terry Hicks, who has

(Continued on following page)

App. 42

of the Petitioners in United States custody “ever took up

arms in the Afghani struggle, it was only on the approach

of the enemy, when they spontaneously took up arms to

resist the invading forces, without having had time to form

themselves into regular armed units, and carrying their

arms openly and respecting all laws and customs of war.”

Id. Additionally, it is alleged in the Amended Petition that

if Petitioners Rasul, Iqbal, and David Hicks were in

Afghanistan prior to being captured, “it was in order to

facilitate humanitarian assistance to the Afghani people.”

Id. 4 31. Furthermore, these Petitioners allegedly “have

taken no step that was not fully protected as their free

exercise of their religious and personal beliefs.” Jd.

B. Odah v. United States

The twelve Kuwaiti nationals in the Odah case, who

are in United States custody at the military base at

Guantanamo Bay, were in Afghanistan and Pakistan,

some before and some after, September 11, 2001. Am.

Compl. 4 14. These individuals were allegedly in those

countries as volunteers for charitable purposes to provide

humanitarian aid to the people of those countries. Jd. The

government of Kuwait allegedly supports such volunteer

brought this suit on behalf of his son, indicates that his son had joined

the Taliban forces. Am. Pet., Ex. C., “Affidavit of Stephen James

Kenny,” Attach. 8 (Letter from Stephen Kenny, counsel for Petitioner

Terry Hicks to Respondent Bush) (“It is our client’s understanding that

his son subsequently joined the Taliban forces and on 8 December 2001

was captured by members of the Northern Alliance.”). Interestingly,

this fact has been omitted from the text of the Amended Petition, but

can be found only by a careful reading of an exhibit attached to the

Amended Petition. Jd.

App. 43

service by continuing to pay the salaries of its Kuwaiti

employees while they engage in this type of volunteer

service abroad. Id.

According to the Amended Complaint, none of those

held in United States custody are, or have ever been, a

combatant or belligerent against the United States, or a

supporter of the Taliban or any terrorist organization. Id.

q 15. Villagers seeking bounties or other promised finan-

cial rewards allegedly seized the twelve Kuwaiti Plaintiffs

against their will in Afghanistan or Pakistan. Jd. 7 16.

Subsequently these twelve Plaintiffs were transferred into

the custody of the United States. Jd. At various points in

time, beginning in January of 2002, these twelve Plaintiffs

were transferred to Guantanamo Bay. /d. 74 19-21.’

IV. LEGAL STANDARD DISTRICT COURTS USE

IN EVALUATING MOTIONS TO DISMISS UNDER

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)

In both matters before the Court, the government has

moved to dismiss on jurisdictional grounds. Before a

federal court can hear a case, it must ascertain that it has

jurisdiction over the underlying subject matter of the

action. Bender v. Williamsport Area School Dist., 475 U.S.

534, 541 (1986) (“Federal courts are not courts of general

jurisdiction; they have only the power that is authorized

by Article III of the Constitution and the statutes enacted

by Congress pursuant thereto.”).

" It has not been confirmed that Plaintiff Mohammed Funaitel Al

Dihani is currently in custody at Guantanamo Bay. Am. Compl. { 21.

App. 44

Motions to dismiss for lack of jurisdiction over the

subject matter of the action are proper under Federal Rule

of Civil Procedure 12(b)\(1). In the Rule 12(b)(1) context,

the plaintiff bears the burden of proving jurisdiction.

McNutt v. General Motors Acceptance Corp., 298 U.S. 178,

182-83 (1936). In both matters, the government challenges

the actual complaint (and/or petition) itself, without relying

on matters outside the pleadings. See generally Hohri v.

United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated

on other grounds, 482 U.S. 64 (1987) (explaining that

materials aliinde pleadings can be considered on a Rule

12(bX 1) motion). One commentator has referred to this

type of motion as a “facial challenge” to a complaint,

because a district court is not asked to review documents

outside the pleadings. 2 James Wm. Moore et al., Moore’s

Federal Practice, § 12.30[4], at 39 (3rd ed. 2002) (“A facial

attack questions the sufficiency of the pleading.”). As both

motions to dismiss before the Court present such “facial

challenges,” the Court must accept all of the Amended

Petition’s/Amended Complaint’s well-pleaded factual allega-

tions as true and draw all reasonable inferences from those

allegations in Petitioners’/Plaintiffs’ favor. United Transp.

Union v. Gateway Western R.R., 78 F.3d 1208, 1210 (7th

Cir. 1996) (citing Rueth v. EPA, 13 F.3d 227, 229 (7th Cir.

1993))."

* Notably, there are a few attachments to the Amended Petition for

Writ of Habeas Corpus which the Court cites in this Memorandum

Opinion. The Court does not consider these matters to be outside the

pleadings because they were attached as exhibits to the Amended

The Amended Petition for a Writ of Habeas Corpus in

the Rasul action states that “Petitioners bring this action

under 28 U.S.C. §§ 2241 and 2242, and invoke this Court's

jurisdiction under 28 U.S.C. §§ 1331, 1350, 1651, 2201,

and 2202, 5 U.S.C. § 702; as well as the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the United States

Constitution, the International Covenant on Civil and

Political Rights (“ICCPR”), the American Declaration on

the Rights and Duties of Man (“ADRDM”), and Customary

International Law.” Am. Pet. 4 2. While Petitioners seek to

invoke this Court’s jurisdiction under a host of separate

provisions, the suit is brought explicitly as a petition for

writs of habeas corpus pursuant to 28 U.S.C. §§ 2241 and

2242.

It has long been held that challenges to an individual’s

custody can only be brought under the habeas provisions.

See Chatman-Bey v. Thornburgh, 864 F.2d 804, 807 (D.C.

Cir. 1988) (en banc) (“Habeas is ... ‘a fundamental safe-

guard against unlawful custody.”) (quoting Justice Harlan’s

dissent in Fay v. Noia, 372 U.S. 391, 449 (1963)); Monk v.

Secretary of the Navy, 793 F.2d 364, 366 (D.C. Cir. 1986)

(“In adopting the federal habeas corpus statute, Congress

determined that habeas corpus is the appropriate federal

remedy for a prisoner who claims that he is ‘in custody in

violation of the Constitution ... of the United States.’”)

(quoting 28 U.S.C. § 2241(cX3)). As Petitioners seek to be

“released from respondents’ unlawful custody,” the Court

can consider this case only as a petition for writs of habeas

App. 46

corpus and not as an action brought pursuant to the Alien

Tort Statute, 28 U.S.C. § 1350, or any of the other jurisdic-

tional bases suggested in the Amended Petition. The

exclusive means for securing the relief Petitioners seek is

through a writ of habeas corpus.

2. Odah v. United States

Seeking to avoid having the Court consider their case

as a petition for writ of habeas corpus, Plaintiffs in Odah

disclaim any desire to be released from confinement. Am.

Compl. at 4. In fact, Plaintiffs have filed an Amended

Complaint that eliminates an earlier request that this

Court consider transferring the twelve Kuwaiti detainees

to Kuwait. By eliminating this request, Plaintiffs endeavor

to distance themselves from anything that might be

construed as an effort to seek their release from United

States custody. Instead, Plaintiffs in Odah ask this Court

to enter a preliminary and permanent injunction prohibit-

ing the government from refusing to allow the Kuwaiti

nationals to “meet with their families,” “be informed of the

charges, if any, against them,” “designate and consult with

counsel of their choice,” and “have access to the courts or

some other impartial tribunal.” Am. Compl. { 40.

While purporting not to seek release from confine-

ment, Plaintiffs in their Amended Complaint plainly

challenge the lawfulness of their custody. The Supreme

Court has held that “the essence of habeas corpus is an

attack by a person in custody upon the legality of that

custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). As

the United States Court of Appeals for the District of

Columbia Circuit stated in Chatman-Bey, “[aJs previously

suggested, the modern habeas cases teach, broadly, that

App. 47

habeas is designed to test the lawfulness of the govern-

ment’s asserted right to detain an individual.” Chatman-

Bey, 864 F.2d at 809 (emphasis in original); see also Raz-

zoli v. Federal Bureau of Prisons, 230 F.3d 371, 373 (D.C.

Cir. 2000) (“[W]e adhere to Chatman-Bey: for a federal

prisoner, habeas is indeed exclusive even when a non-

habeas claim would have a merely probabilistic impact on

the duration of custody.”).

In the present case, Plaintiffs’ fourth request for relief

squarely challenges the validity of Plaintiffs’ detention.

Plaintiffs seek to have “access to the courts or some other

impartial tribunal.” Am. Compl. { 40. Elaborating on this

request, Plaintiffs have told the Court that they seek

access to an impartial tribunal in order to “expeditiously

establish their innocence and be able to return to Kuwait

and their families.” Pls.’ Mem. of P. & A. in Supp. of Mot.

for a Prelim. Inj. (“Pls.’ Mem.”) at 2. Without question, this

prayer for relief is nothing more than a frontal assault on

their confinement. While Plaintiffs in this case state that

they do not seek immediate release, neither did the plain-

tiffs in Chatman-Bey or Monk. Nevertheless, the District

of Columbia Circuit in both of those cases found that the

federal habeas statute was the only lawful way for the

petitioners to challenge their confinement. Chatman-Bey,

864 F.2d at 809; Monk, 793 F.2d at 366. In the Odah case,

Plaintiffs seek to be presented immediately before a court

to exonerate themselves “expeditiously.” This type of claim

App. 48

is within the exclusive province of the writ of habeas

9

corpus.

The other provisions of Plaintiffs’ request for relief,

namely that they be permitted to “meet with their fami-

lies,” “be informed of the charges, if any, against them,”

and “designate and consult with counsel of their choice,”

Am. Compl. 7 40, are directly related to their request to be

brought before a court which would determine the extent

of their entitlement to rights. Plaintiffs cannot escape

having the Court convert their action into writs for habeas

corpus by adding these three additional requests for relief.

Plaintiffs argue that they merely seek to challenge the

conditions of their confinement relying principally on

Gerstein v. Pugh, 420 U.S. 103 (1975). Pls.’ Opp’n to Defs.’

Mot. to Dismiss Pls.’ Compl. and Mot. for a Prelim. Inj.

(“Pls.’ Opp’n”) at 19-20. The Supreme Court in Gerstein

found that, pursuant to 42 U.S.C. § 1983, a declaratory

judgment action against state officials was a permissible

means to address whether a person arrested and held for

trial under a prosecutor’s information was constitutionally

entitled to a probable cause hearing before a judge. Ger-

stein, 420 U.S. at 107 n.5. Thus, the Supreme Court

concluded that such an action did not need to be filed as a

habeas petition. Jd. at n.6 (“Respondents did not ask for

release from state custody, even as an alternative remedy.

* Plaintiffs cite to the habeas statutes basis for the Court’s

have disavowed that their action is one sounding in habeas, the

Amended Complaint continues to rely on the habeas statutes to provide

this Court with jurisdiction.

App. 49

They asked only that the state authorities be ordered to

give them a probable cause determination.”).

There are clear differences between the claims pre-

sented in Odah and those addressed by the Court in

Gerstein. As the Third Circuit has noted, “[I]n Gerstein v.

Pugh, the constitutional validity of a method of pretrial

procedure, rather than its application to any particular

case, was the focus of the challenge.” Tedford v. Hepting,

990 F.2d 745, 749 (3d Cir. 1993) (emphasis added). The

Gerstein Court recognized that the pretrial custody of the

named plaintiffs had long since expired. Gerstein, 420 U.S.

at 110 n.11. Accordingly, the claims the Gerstein Court

addressed were focused on the constitutional adequacy of a

pretrial procedure as it existed in the abstract. Plaintiffs

in Odah, on the other hand, each seek a hearing on the

merits of their individualized detentions.

In addition, Plaintiffs have not brought a declaratory

judgment action seeking to invalidate some procedure that

would not impact the duration of their confinement. The

issue in Odah is Plaintiffs’ desire to have a hearing before

a neutral tribunal. For such a claim, a petition for writ of a

habeas corpus is the exclusive avenue for relief.” Thus, as

” Plaintiffs’ citation to Brown v. Plaut is similarly unavailing. P's.’

Opp’n at 20 (citing Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997)). The

Brown case involved a prisoner’s challenge to a decision to place him in

administrative segregation. The Court of Appeals held that such action

did not have to be brought as a petition for writ of habeas corpus. Id. at

167. In that case, the appellate panel observed that the Supreme Court

“has never deviated from Preiser’s clear line between challenges to the

fact or length of custody and challenges to the conditions of confine-

ment.” Jd. at 168. Plaintiffs’ broad request to be produced before a

tribunal is obviously a challenge “to the fact . . . of custody.” Jd. Accord-

ingly, Brown does not apply to this case.

App. 50

it does in Rasul, the Court shall review the jurisdictional

basis of the Odah case as if it were styled as a petition for

writ of habeas corpus.”

" Alternatively, the Court notes that in order for the government

to be sued under the Alien Tort Statute, the government must waive its

sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a

waiver, sovereign immunity shields the Federal Government and its

agencies from suit.”). Plaintiffs argue that Section 702 of the Adminis-

trative Procedure Act provides such a waiver. Pls.’ Opp’n at 24 (citing

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985) (Scalia,

J.) (stating that while the Alien Tort Statute does not provide a waiver

of sovereign immunity, “[w]ith respect to claims against federal

[officials] for nonmonetary relief ... the waiver of the Administrative

Procedure Act . . . is arguably available”) (emphasis in original)).

Assuming that Section 702 of the Administrative Procedure Act

provides a waiver, the Court finds that the actions of the government in

this case would be exempt by 5 U.S.C. § 701(b)(1XG) (providing an

exemption for, “military authority exercised in the field in time of war

or in occupied territory”). Cases that have analyzed Section 701(b)(1)(G)

have had occasion to address it only in the context of “judicial interfer-

ence with the relationship between soldiers and their military superi-

ors.” Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir. 1991). Despite the

absence of pertinent case law, the language of Section 701(b)(1G)

supports the view that this Court is unable to review the claim Plain-

tiffs make under the Administrative Procedure Act. There is no dispute

that Plaintiffs were captured in areas where the United States was

(and is) engaged in military hostilities pursuant to the Joint Resolution

of Congress. Am. Compl. 716 (“the Kuwaiti Detainees were seized

against their will in Afghanistan or Pakistan”). This situation plainly

falls within Section 701(b)(1\G).

The Court was unable to find any material in the legislative history

that addressed Section 701(b)(1G) of the Administrative Procedure

Act, see, e.g., S. Rep. No. 89-1350, at 32-33 (1966); H.R. Rep. No. 89-901,

at 16 (1965), and the parties have not provided any legislative history,

that would change the Court’s view of this provision. Furthermore,

granting Plaintiffs relief under the Administrative Procedure Act would

produce a bizarre anomaly: United States soldiers would be unable to

use the courts of the United States to sue about events arising on the

battlefield, while aliens, with no connection to the United States, could

(Continued on following page)

App. 51

The Court, therefore, considers both cases as petitions

for writs of habeas corpus on behalf of aliens detained by

the United States at the military base at Guantanamo

Bay, Cuba. In viewing both cases from this perspective, the

Court concludes that the Supreme Court’s ruling in John-

son v. Eisentrager, 339 U.S. 763 (1950), and its progeny,

are controlling and bars the Court’s consideration of the

merits of these two cases. The Court shall briefly provide

an overview of the Eisentrager decision, discuss the

distinction in Eisentrager between the rights of citizens

and aliens, analyze whether Eisentrager applies only to

enemy aliens, and lastly, discuss the meaning of the

concept of “sovereign territory” as presented in Eisen-

trager.

1. Johnson v. Eisentrager

The Eisentrager case involved a petition for writs of

habeas corpus filed by twenty-one German nationals in

sue their United States military captors while hostilities continued.

Such an outcome defies common sense.

Accordingly, even if the Court did not treat the Odah case as a

petition for writs of habeas corpus, Count III, brought pursuant to the

Administrative Procedure Act, fails because the actions complained of

by Plaintiffs are exempt pursuant to 5 U.S.C. § 701(b\1XG). Addition-

ally, as Plaintiffs have not set forth another basis for the government’s

waiver of its sovereign immunity outside the Administrative Procedure

Act, Count II brought pursuant to the Alien Tort Statute would be

subject to dismissal.

App. 52

the United States District Court for the District of Colum-

bia. Eisentrager, 339 U.S. at 765. The prisoners in Eisen-

trager had been captured in China for engaging in

espionage against the United States following the surren-

der of Germany, but before the surrender of Japan, at the

end of World War II. Jd. at 766. Since the United States

was at peace with Germany, the actions of the Eisentrager

petitioners violated the laws of war. Id. Following a trial

and conviction by a United States military commission

sitting in China, with the express permission of the

Chinese government, the prisoners were repatriated to

Germany to serve their sentences at Landsberg Prison. Id.

Their immediate custodian at Landsberg Prison was a

United States Army officer under the Commanding Gen-

eral, Third United States Army, and the Commanding

General, European Command. Id.

The district court dismissed the petition for want of

jurisdiction. Jd. at 767. An appellate panel reversed the

decision of the district court and remanded the case for

further proceedings. See Eisentrager v. Forrestal, 174 F.2d

961 (D.C. Cir. 1949). In an opinion by Judge E. Barrett

Prettyman, the Court of Appeals for the District of Colum-

bia Circuit held that “any person who is deprived of his

liberty by officials of the United States, acting under

purported authority of that Government, and who can

show that his confinement is in violation of a prohibition of

the Constitution, has a right to the writ.” Jd. at 963.

A divided panel of the Supreme Court reversed the

decision of the District of Columbia Circuit and affirmed

the judgment of the district court. Eisentrager, 339 U.S. at

791. In finding that no court had jurisdiction to entertain

the claims of the German nationals, the Supreme Court, in

an opinion by Justice Robert Jackson, found that a court

- Pe ODES a OD a AN, eS Net

App. 53

was unable to extend the writ of habeas corpus to aliens

held outside the sovereign territory of the United States.

Id. at 778.

2. The Critical Distinction Between Citizens

and Aliens

Justice Jackson began his opinion by noting the legal

differences between citizens and aliens, and between

friendly aliens and enemy aliens. Jd. at 769. Noting that

citizenship provides its own basis for jurisdiction, Justice

Jackson observed that “[c]itizenship as a head of jurisdic-

tion and a ground of protection was old when Paul invoked

it in his appeal to Caesar.” Jd. Such protections, Justice

Jackson noted, also apply to an individual seeking a fair

hearing on his or her claim to citizenship. Jd. 769-70

(citing Chin Yow v. United States, 208 U.S. 8 (1908)).

In the case of the alien, Justice Jackson wrote that

“(t]he alien, to whom the United States has been tradi-

tionally hospitable, has been accorded a generous and

ascending scale of rights as he increases his identity with

our society.” Jd. at 770. For example, presence within the

country provides an alien with certain rights that expand

and become more secure as he or she declares an intent to

become a citizen, culminating in the full panoply of rights

afforded to the citizen upon the alien’s naturalization. Id.

In extending constitutional protections beyond the citi-

zenry, Justice Jackson noted that the Supreme 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.” Jd. at 771.

Justice Jackson’s sentiment is borne out by the case law.

Courts of the United States have exercised jurisdiction in

App. 54

cases involving individuals seeking to prove their citizen-

ship, Chin Yow, 208 U.S. at 13 (1908) (habeas action

permitted for one seeking admission to the country to

assure a hearing on his claims to citizenship), or in situa-

tions where aliens held in a port of the United States

sought entry into the country, Nishimura Ekiu v. United

States, 142 U.S. 651, 660 (1892) (“An alien immigrant,

prevented from landing by any such officer claiming

authority to do so under an act of congress, and thereby

restrained of his liberty, is doubtless entitled to a writ of

habeas corpus to ascertain whether the restraint is law-

ful.”). In the cases at bar it is undisputed that the indi-

viduals held at Guantanamo Bay do not seek to become

citizens. Nor have Petitioners or Plaintiffs suggested that

they have ever been to the United States or have any

desire to enter the country. Petitioners and Plaintiffs do

not fall into any of the categories of cases where the courts

have entertained the claims of individuals seeking access

to the country.

3. Does the Eisentrager inion Apply Only to

“Enemy” Aliens?

Justice Jackson continued his analysis in Eisentrager

by noting that enemy aliens captured incident to war do

not have even a qualified access to the courts of the United

States as compared to an alien who has lawful residence

within the United States. Eisentrager, 339 U.S. at 776

(“(T]he nonresident enemy alien, especially one who has

remained in the service of the enemy, does not have ...

this qualified access to our courts, for he neither has

comparable claims upon our institutions nor could his use

of them fail to be helpful to the enemy.”); id. (quoting

Clarke v. Morey, 10 Johns. 69, 72 (N.Y. Sup. Ct. 1813) (“A

LI

oa oD PO en Re TY NCTE BA AAT I OO AE OE 5 Ant i be Ot Os. te he Aimmate e e

App. 55

lawful residence implies protection, and a capacity to sue

and be sued. A contrary doctrine would be repugnant to

sound policy, no less than to justice and humanity.”)).

Petitioners in Rasul and Plaintiffs in Odah argue that the

determination by the military commission in China that

the petitioners in Eisentrager were enemy aliens is fatal to

the government’s reliance on Eisentrager. Pet’rs Mem. in

Opp’n to Resp’ts Mot. to Dismiss (“Pet’rs Opp’n”) at 12;

Pls.’ Opp’n at 6-7. Insisting that no determination has

been made about the aliens presently held by the govern-

ment at Guantanamo Bay, Plaintiffs and Petitioners argue

that the holding in EHisentrager is inapplicable to the

instant cases.

To the contrary, the Supreme Court’s conclusion in

Eisentrager, that the district court was without jurisdic-

tion to consider the petition for writs of habeas corpus on

behalf of the twenty-one German nationals, did not hinge

on the fact that the petitioners were enemy aliens, but on

the fact that they were aliens outside territory over which

the United States was sovereign. The Supreme Court held:

We have pointed out that the privilege of litiga-

tion has been extended to aliens, whether

friendly or enemy, only because permitting their

presence in the country implied protection. No

such basis can be invoked here, for these prison-

ers at no relevant time were within any territory

over which the United States is sovereign, and

the sences of their offense, their capture, their

trial and their punishment were all beyond the

territorial jurisdiction of any court of the United

States.

Id. at 777-78. In fact, the Supreme Court has consistently

taken the position that Hisentrager does not apply only to

App. 56

those aliens deemed to be “enemies” by a competent

tribunal. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001)

(Breyer, J.); United States v. Verdugo-Urquidez, 494 U.S.

259, 270 (1990) (Rehnquist, C.J.). These later Supreme

Court cases reinforce the conclusion that there is no

meaningful distinction between the cases at bar and the

Eisentrager decision on the mere basis that the petitioners

in Eisentrager had been found by a military commission to

be “enemy” aliens.”

In Zadvydas, the Court cited Eisentrager for the proposi-

tion that “[iJt is well established that certain constitutional

protections available to persons inside the United States are

unavailable to aliens outside of our geographic borders.”

Zadvydas, 533 U.S. at 693 (discussing also that “once an

" The government has encouraged this Court to take “judicial

notice” that these individuals are “enemy combatants.” Tr. 9-10. In

reviewing this case, the Court has taken the allegations in the

Amended Petition and Amended Complaint as true as required by Rule

12(b)(1). Petitioners and Plaintiffs allege that the individuals held at

Guantanamo Bay were initially taken into custody and detained in

Afghanistan and Pakistan where military hostilities were in progress.

Am. Pet. 49 22-24; Am. Compl. 4 16. David Hicks, who had joined the

Taliban, see supra note 6, arguably may be appropriately considered an

“enemy combatant.” The paucity, ambiguity, and contradictory informa-

tion provided by the Amended Petition and the Amended Complaint

about Petitioners Rasul and Iqbal and the twelve Kuwaiti Plaintiffs

held at the military base at Guantanamo Bay prevents the Court from

likewise concluding that these individuals were engaged in hostilities

against the United States, or were instead participating in the benign

activities suggested in the pleadings. While another court with appar-

ently the same factual record has labeled, without explanation, th»

individuals held at Guantanamo Bay “enemy combatants,” Coalition of

Clergy v. Bush, 189 F. Supp. 2d, 1036, 1048 (C.D. Cal. 2002), this Court

on the record before it, declines to take that step because taking judicial

notice of a fact requires that the fact be “not subject to reasonable

dispute.” Fed. R. Evid. 201.

Pm

SO ee I et et

ee a a

App. 57

alien enters the country, the legal circumstance changes,

for the Due Process Clause applies to all ‘persons’ within

the United States, including aliens, whether their pres-

ence here is lawful, unlawful, temporary, or permanent”).

In Verdugo-Urquidez, the Court quoted a passage from

Eisentrager for the proposition that the Supreme Court

has emphatically rejected “extraterritorial application of

the Fifth Amendment.” Verdugo-Urquidez, 494 U.S. at 269.

The Court of Appeals for the District of Columbia Circuit

has taken a similarly broad view of Eisentrager. Harbury

v. Deutch, 233 F.3d 596, 605 (D.C. Cir. 2000), rev’d on other

grounds sub nom. Christopher v. Harbury, 122 S. Ct. 2179

(2002) (observing that the Supreme Court's citation to

Eisentrager in Verdugo-Urquidez was binding, and express-

ing its view that extraterritorial application of the Fifth

Amendment was not available for aliens).

If there exists any doubt as to the sweeping nature of

the holding in Eisentrager, the dissent in that opinion clearly

crystalizes the extent of the decision. Justice Douglas,

writing for himself and two other Justices, stated:

If the [majori’s] opinion thus means, and it ap-

parently does, that these petitioners are deprived

of the privilege of habeas corpus solely because

they were convicted and imprisoned overseas, the

Court is adopting a broad and dangerous princi-

.... [T]he Court’s opinion inescapably denies

courts power to afford the least bit of protection

for any alien who is subject to our occupation

government abroad, even if he is neither enemy

nor belligerent and even after peace is officially

declared.

Eisentrager, 339 U.S. at 795-96 (Douglas, J., dissenting).

Thus, even Justice Douglas noted that according to the

App. 58

majority's opinion in Eisentrager, the Great Writ had ao

extraterritorial application to «'\+ as.

Accordingly, the Court finds that LEisentrager is

applicable to the aliens in these cases, who are held at

Guantanamo Bay, even in the absence of a determination

by a military commission that they are “enemies.”” While

it is true that the petitioners in Eisentrager had already

been convicted by a military commission, id. at 766, the

Eisentrager Court did not base its decision on that distinc-

tion. Rather, Eisentrager broadly applies to prevent aliens

detained outside the sovereign territory of the United

States from invoking a petition for a writ of habeas corpus.

In sum, the Eisentrager decision establishes a two-

dimensional paradigm for determining the rights of an

individual under the habeas laws. If an individual is a

citizen or falls within a narrow class of individuals who

are akin to citizens, i.e. those persons seeking to prove

their citizenship and those aliens detained at the nation’s

ports, courts have focused on status and have not been as

concerned with the situs of the individual. However, if the

individual is an alien without any connection to the

United States, courts have generally focused on the

location of the alien seeking to invoke the jurisdiction of

* The United States confronts an untraditional war that presents

unique challenges in identifying a nebulous enemy. In earlier times

when the United States was at war, discerning “the enemy” was far

easier than today. “{IJn war ‘every individual of the one nation must

acknowledge every individual of the other nation as his own enemy.’”

Eisentrager 339 U.S. at 772 (quoting The Rapid, 8 Cranch 155, 161

(1814)). The two cases at bar contain nationals from three friendly

countries at peace with the United States, demonstrating the difficulty

in determining who is the “enemy.”

App. 59

the courts of the United States. If an alien is outside the

country’s sovereign territory, then courts have generally

concluded that the alien is not permitted access to the

courts of the United States to enforce the Constitution.

Given that Eisentrager applies to the aliens presently

detained at the military base at Guantanamo Bay, the only

question remaining for the Court’s resolution is whether

Guantanamo Bay, Cuba is part of the sovereign territory of

the United States.

4. Is Guantanamo Bay Part of the Sovereign

Territory of the United States?

The Court in Eisentrager discusses the territory of the

United States in terms of sovereignty. Jd. at 778 (“for these

prisoners at no relevant time were within any territory

over which the United States is sovereign”). It is undis-

puted, even by the parties, that Guantanamo Bay is not

part of the sovereign territory of the United States. Thus,

“ The United States occupies Guantanamo Bay under a lease

entered into with the Cuban government in 1903. Agreement Between

the United States and Cuba for the Lease of Lands for Coaling and

Naval Stations, Feb. 16-23, 1903, U.S.-Cuba, art. III, TS. 418. The

lease provides:

While on the one hand the United States recognizes the con-

tinuance of the ultimate sovereignty of the Republic of Cuba

over [the military base at Guantanamo Bay], on the other

hand the Republic of Cuba consents that during the period

of occupation by the United States of said areas under the

terms of this agreement the United States shall exercise

with the right to acquire .. . for the public purposes of the

United States any land or other property therein by pur-

chase or by exercise of eminent domain with full compensa-

tion to the owners thereof.

(Continued on following page)

App. 60

the only question remaining for resolution is whether this

fact alone is an absolute bar to these suits, or whether

aliens on a United States military base situated in a

foreign country are considered to be within the territorial

jurisdiction of the United States, under a de facto theory of

sovereignty.

Petitioners and Plaintiffs assert that the United

States has de facto sovereignty over the military base at

Guantanamo Bay, and that this provides the Court with

the basis needed to assert jurisdiction. Pet’rs Opp’n at 21;

Pls.’ Opp’n at 11. In other words, Petitioners and Plaintiffs

argue that even if the United States does not have de jure

sovereignty over the military facility at Guantanamo Bay,

it maintains de facto sovereignty due to the unique nature

of the control and jurisdiction the United States exercises

over this military base. According to Petitioners and

Plaintiffs, if the United States has de facto sovereignty

over the military facility at Guantanamo Bay, then Eisen-

trager is inapplicable to their cases and the Court is able

to assume jurisdiction over their claims. However, the

cases relied on by Petitioners and Plaintiffs to support

their thesis are belied not only by Eisentrager, which never

qualified its definition of sovereignty in such a manner,

but also by the very case law relied on by Petitioners and

Plaintiffs.

At oral argument, when asked for a case that sup-

ported the view that de facto sovereignty would suffice to

provide the Court with jurisdiction, both Petitioners and

Id. As is clear from this agreement, the United States does not have

sovereignty over the military base at Guantanamo Bay.

App. 61

Plaintiffs directed the Court to Ralpho v. Bell, 569 F.2d

607 (D.C. Cir. 1977). Tr. at 33, 62-63. The Ralpho case

involves a claim brought under the Micronesian Claims

Act of 1971, which was enacted by the United States

Congress to establish a fund to compensate Micronesians

for losses incurred during the hostilities of World War II.

Ralpho, 569 F.2d at 611. The plaintiff in that case, a

citizen of Micronesia, argued that the Micronesian Claims

Commission, established by the Act to adjudicate settle-

ment claims, violated his due process rights by relying on

secret evidence in deciding his claim. Jd. at 615. While the

United States did not have sovereignty over Micronesia,

the District of Columbia Circuit found that the plaintiff

was entitled to the protections of the due process clause.

Id. at 618-19.

Petitioners and Plaintiffs have seized upon this case

as an example of a court granting an alien due process

rights in a geographic area where the United States was

not sovereign. Petitioners and Plaintiffs contend that if the

plaintiff in Ralpho was able to secure constitutional rights

in an area where the United States was not sovereign,

constitutional rights are arguably available to aliens

located in places where the United States is the de facto

sovereign. The problem for Petitioners and Plaintiffs is

that Ralpho does not stand for the proposition that a court

can grant constitutional rights over a geographical area

where de facto sovereignty is present. Rather, Ralpho

stands for a limited extension of the uncontested proposi-

tion that aliens residing in the sovereign territories of the

United States are entitled to certain basic constitutional

rights.

As the Court of Appeals explained in Ralpho, “[tJhat

the United States is answerable to the United Nations for

App. 62

its treatment of the Micronesians does not give Congress

greater leeway to disregard the fundamental rights and

liberties of a people as much American subjects as those in

other American territories.” Jd. After this observation, the

Ralpho Court quoted the remarks of the United States

Representative to the United Nations Security Council

Meeting that considered whether to award trusteeship to

the United States: “My government feels that it has a duty

toward the peoples of the Trust Territory to govern them

with no less consideration than it would govern any part of

its sovereign territory.” Jd. n.72 (internal citation omitted).

Additionally, when the United States was appointed by the

United Nations to administer Micronesia as a trust terri-

tory, no other nation had sovereignty over Micronesia, and

the United States had “full powers of administration,

legislation, and jurisdiction over the territory subject to

the provisions of [the trust] agreement.” Trusteeship

Agreement for the Former Japanese Mandated Islands

Approved at the One Hundred and Twenty-Fourth Meet-

ing of the Security Council, July 18, 1947, 61 Stat. 3301,

T.LA.S. No. 1665, art. 3; id., preamble (noting that “Japan,

as a result of the Second World War, has ceased to exercise

any authority in these islands”).

As clearly set forth in the case, the Ralpho Court

treated Micronesia as the equivalent of a United States

territory, such as Puerto Rico or Guam. In fact, Ralpho

relies solely on the cases establishing constitutional rights

for persons living in the territories of the United States as

support for the view that the plaintiff located in Microne-

sia was deserving of certain due process rights. Ralpho,

569 F.2d at 619 n.70 (citing, inter alia, Balzac v. Porto

Rico, 258 U.S. 298, 313 (1922)). The Balzac case, which

predates Eisentrager, stands for the proposition that the

App. 63

limits of due process apply to the sovereign territories of

the United States. Balzac, 258 U.S. at 313; id at 312 (“The

Constitution, however, contains grants of power, and

limitations which in the nature of things are not always

and everywhere applicable and the real issue in the ~

Insular Cases was not whether the Constitution extended

to the Philippines or [Puerto] Rico when we went there,

but which ones of its provisions were applicable by way of

limitation upon the exercise of executive and legislative

power in dealing with new conditions and require-

ments.”).”*

“ In Harbury, the Court of Appeals referred to Balzac as a situa-

tion where foreign nationals were under “de facto U.S. political control.”

Harbury, 233 F.3d at 603. This phrase does not imply that in situations

where “de facto sovereignty” might arguably be present, constitutional

rights are available to aliens. In making this statement, the Court of

Appeals cited to two cases involving Puerto Rico, Examining Bd. of

Eng’rs., Architects & Surveyors v. Otero, 426 U.S. 572, 599 n.30 (1976)

and Balzac, 258 U.S. at 312-13, and another case involving a special

court of the United States that was held in Berlin, United States v.

Tiede, 86 F.R.D. 227, 242-44 (U.S. Ct. Berlin 1979). In the two cases

involving Puerto Rico, it is undisputed that the United States had

sovereignty over the territory. In the case involving the special court

convened in Berlin, the court was a United States court convened in an

occupation zone controlled by the United States. Tiede, 86 F.R.D. at

244-45 (“The sole but novel question before the Court is whether

friendly aliens, charged with civil offenses in a United States court in

Berlin, under the unique circumstances of the continuing United States

occupation of Berlin, have a right to a jury trial.”). Accordingly, the fact

that the panel in Harbury used the phrase “de facto U.S. political

control” to describe a category of cases where constitutional rights were

cases relied upon by the Court of Appeals in Harbury for this statement

do not support the view that where the United States has de facto

sovereignty, courts of the United States have jurisdiction to entertain

the claims of aliens.

App. 64

Thus, the Court in Ralpho analogized the situation

before it to those cases granting constitutional rights to

the peoples of United States territories, even though the

trust agreement with the United Nations did not provide

for sovereignty over Micronesia. Ralpho, 569 F.2d at 619

n.71. The cases involving the territories of the United

States, relied on by the Ralpho Court, are fundamentally

different from the two cases presently before the Court.

The military base at Guantanamo Bay, Cuba, is nothing

remotely akin to a territory of the United States, where

the United States provides certain rights to the inhabi-

tants. Rather, the United States merely leases an area of

land for use as a naval base. Accordingly, the Court is

hard-pressed to adopt Petitioners’ and Plaintiffs’ view that

the holding in Ralpho favors their claims.

In fact, another district court considering whether a

de facto sovereignty test should be used to analyze claims

occurring at the military base at Guantanamo Bay flatly

rejected the idea. Bird v. United States, 923 F. Supp. 338

(D. Conn. 1996). In Bird, a plaintiff alleged a misdiagnosis

of a brain tumor at the United States Medical Facility at

Guantanamo Bay. Jd. at 339. Seeking to sue under the

Federal Tort Claims Act (“FTCA”), the plaintiff sought to

distinguish prior case law which held that injuries occur-

ring on leased military bases were exempt from the FTCA

under the “foreign country” exemption. In order to circum-

vent this case law, the plaintiff in Bird argued that the

unique territorial status of the military base at Guan-

tanamo Bay brought injuries occurring on its soil within

the FTCA. Id. at 340. Rejecting the plaintiff’s argument

that the United States had de facto sovereignty over the

military base at Guantanamo Bay, the court wrote,

“[blecause the 1903 Lease of Lands Agreement clearly

App. 65

establishes Cuba as the de jure sovereign over Guan-

tanamo Bay, this Court need not speculate whether the

United States is the de facto sovereign over the area.” Id.

at 343. While Bird dealt with the foreign country exemp-

tion to the FTCA, it expressly disavowed a de facto sover-

eignty test, when it was clear that Cuba was the de jure

sovereign over Guantanamo Bay.

The Bird case is not the only court to reject a de facto

sovereignty test for claims involving aliens located at the

military base at Guantanamo Bay. Cuban American Bar

Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995),

cert. denied, 515 U.S. 1142 (1995). The Cuban American

Bar Association case involved Cuban and Haitian mi-

grants held in “safe haven” at Guantanamo Bay after they

left their respective countries and were intercepted in

international waters by the United States Coast Guard.

Id. at 1417, 1419. The Eleventh Circuit specifically ad-

dressed the question of whether migrants “outside the

physical borders of the United States have any cognizable

statutory or constitutional rights.” Jd. at 1421. In Cuban

American Bar Association, the Eleventh Circuit held:

The district court here erred in concluding that

Guantanamo Bay was a “United States terri-

tory.” We disagree that “control and jurisdiction”

{as set forth in the lease between the United

States and Cuba] is equivalent to sovereignty. . . .

[W]e again reject the argument that our leased

military bases abroad which continue under the

sovereignty of foreign nations, hostile or friendly,

are “functional[ly] equivalent” to being land bor-

ders or ports of entry of the United States or oth-

erwise within the United States.

App. 66

Id. at 1425 (internal citations omitted). Thus, Cuban

American Bar Association stands for the proposition that

the military base at Guantanamo Bay is not within the

territorial jurisdiction of the United States simply because

the United States exercises jurisdiction and control over

that facility.

Plaintiffs seek to distinguish Cuban American Bar

Association by citing a Second Circuit opinion that has

been vacated as moot by the Supreme Court. Pls.’ Opp’n at

12-13 (citing Haitian Centers Council, Inc. v. McNary, 969

F.2d 1326 (2d Cir. 1992), vacated as moot sub nom. Sale v.

Haitian Centers Council, Inc., 509 U.S. 918 (1993) [herein-

after “HCC”]). Ordinarily the Court would give short shrift

to a case that has been vacated by the Supreme Court and

not issued by the District of Columbia Circuit. However,

since Plaintiffs in their papers, emphasize the importance

of the reasoning in this vacated decision, the Court consid-

ers it necessary to briefly address the case.

The Court determines that HCC is distinguishable on

its facts. In HCC, migrants were housed at the military

base on Guantanamo Bay and determinations were made

by Immigration and Naturalization Service (“INS”) officers

regarding their status. Jd. at 1332-33. Those migrants that

an INS officer deemed to have a credible fear of political

persecution were “screened in” and were to be brought to

the United States to pursue asylum claims. Those who did

not fit within this class were repatriated to Haiti. Jd.

The crucial distinction in their rights as aliens is that

the aliens in HCC had been given some form of process by

the government of the United States. Once the United

States made determinations that the migrants had a

credible fear of political persecution and could claim

App. 67

asylum in the United States, these migrants became

vested with a liberty interest that the government was

unable to simply deny without due process of law. The

situation in HCC is fundamentally different from the cases

presently before the Court. The individuals held at Guan-

tanamo Bay have no desire to enter the United States and

no final decision as to their status has been made. At this

stage of their detention, those held at Guantanamo Bay

more closely approximate the migrants in Cuban Ameri-

can Bar Association than the migrants “screened in” for

admission to the United States in HCC.”

VI. CONCLUSION

The Court concludes that the military base at Guan-

tanamo Bay, Cuba is outside the sovereign territory of the

United States. Given that under Eisentrager, writs of

habeas corpus are not available to aliens held outside the

sovereign territory of the United States, this Court does

not have jurisdiction to entertain the claims made by

Petitioners in Rasul or Plaintiffs in Odah. Of course, just

as the Eisentrager Court did not hold “that these prisoners

have no right which the military authorities are bound to

respect,” Eisentrager, 339 U.S. at 789 n.14, this opinion,

too, should not be read as stating that these aliens do not

have some form of rights under international law. Rather,

* While there is dicta in the HCC opinion which indicates a

broader holding with regard to the constitutional rights of individuals

detained at the military base on Guantanamo Bay, such dicta in HCC is

not persuasive and not binding. HCC, 969 F.2d at 1343. The Supreme

Court in Eisentrager, Verdugo-Urquidez, and Zadvydas, and the District

of Columbia Circuit in Harbury, have all held that there is no extrater-

ritorial application of the Fifth Amendment to aliens.

App. 68

the Court’s decision solely involves whether it has jurisdic-

tion to consider the constitutional claims that are pre-

sented to the Court for resolution.

Petitioners and Plaintiffs argue that as long as the

United States has de facto sovereignty over Guantanamo

Bay, Fifth Amendment protections should apply. For this

proposition, Petitioners and Plaintiffs rely on Ralpho, a

case that involves land so similar to United States terri-

tory that the District of Columbia Circuit extended consti-

tutional protections to its inhabitants. Clearly,

Guantanamo Bay does not fall into that category. The

Court, therefore, rejects the holding in Ralpho as a basis

for this Court to exercise jurisdiction over the claims made

by Petitioners and Plaintiffs. Accordingly, both cases shall

be dismissed for want of jurisdiction.

/s/ Colleen Kollar-Kotelly

Colleen Kollar-Kotelly

United States District Judge

Copies to:

L. Barrett Boss

Suite 200

ASBILL, JUNKIN, MOFFITT & BOSS, CHARTERED

1615 New Hampshire Avenue, N.W.

Washington, DC 20009

Thomas B. Wilner

Neil H. Koslowe

Kristine A. Huskey

Heather L. Kafele

SHEARMAN & STERLING

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

App. 69

Robert D. Okun, AUSA

UNITED STATES ATTORNEY'S OFFICE

FOR THE DISTRICT OF COLUMBIA

555 4th Street, N.W.

Washington, D.C. 20001

App. 70

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHAFIQ RASUL, SKINA BIBI,

as Next Friend of Shafiq Rasul, et

al., Civil Action No.

Petitioners, 02-299 (CKK)

v.

GEORGE WALKER BUSH,

President of the United States,

et al.,

Respondents.

FAWZI KHALID ABDULLAH

FAHAD AL ODAH, et al.,

Plaintiffs, Civil Action No.

. 02-828 (CKK)

UNITED STATES OF AMERICA,

et al.,

Defendants.

ORDER

(Filed July 30, 2002)

For the reasons stated in the accompanying Memo-

randum Opinion, it is this 30 day of July, 2002, hereby

ORDERED that Respondents’ Motion to Dismiss

Petitioners’ First Amended Petition for Writ of Habeas

Corpus [#26] filed in Rasul v. Bush, Civil Action No. 02-

299, is GRANTED; it is further

App. 71

ORDERED that Defendants’ Motion to Dismiss

Plaintiffs’ Complaint and Plaintiffs’ Motion for a Prelimi-

nary Injunction [#15] filed in Odah v. United States, Civil

Action No. 02-828, is GRANTED; it is further

ORDERED that Rasul v. Bush, 02cv299, and Odah v.

United States, 02cv828, are DISMISSED WITH PREJU-

DICE.

SO ORDERED.

/s/ Colleen Kollar-Kotelly

COLLEEN KOLLAR-KOTELLY

United States District Judge

Copies to:

L. Barrett Boss

Suite 200

ASBILL, JUNKIN, MOFFITT & BOSS, CHARTERED

1615 New Hampshire Avenue, N.W.

Washington, DC 20009

Thomas B. Wilner

Neil H. Koslowe

Kristine A. Huskey

Heather L. Kafele

SHEARMAN & STERLING

801 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Robert D. Okun, AUSA

UNITED STATES ATTORNEY'S OFFICE

FOR THE DISTRICT OF COLUMBIA

555 4th Street N.W.

Washington, D.C. 20001

App. 72

United States Court of Appeals

For THE DISTRICT OF COLUMBIA CIRCUIT

No. 02-5251 September Term, 2002

02cv00299

02cv00828

02cv01130

Khaled A. F. Al Odah, Next

Friend of Fawzi Khalid

Abdullah Fahad Al Odah,et al.,

Appellants

v.

United States of America, et al.,

Appellees Filed On: Jun. 2, 2003

Consolidated with 02-5284, 02-5288

BEFORE: Randolph and Garland, Circuit Judges, and

Williams, Senior Circuit Judge

ORDER

Upon consideration of appellants’ petition for rehear-

ing in No. 02-5251, filed April 25, 2003, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/ Michael C. McGrail

Michael C. McGrail

Deputy Clerk

App. 73

United States Court of Appeals

FoR THE DISTRICT OF COLUMBIA CIRCUIT

No. 02-5251 September Term, 2002

02cv00299

02cv00828

02cv01130

Khaled A. F. Al Odah, Next

Friend of Fawzi Khalid Abdul-

lah Fahad Al Odah, et al.,

Appellants

v.

United States of America, et al.,

Appellees Filed On: Jun. 2, 2003

Consolidated with 02-5284, 02-5288

BEFORE: Ginsburg, Chief Judge, and Edwards,

Sentelle, Henderson, Randolph, Rogers,

Tatel, and Garland, Circuit Judges, and

Williams, Senior Circuit Judge

Upon consideration of appellants’ petition for rehear-

ing en banc in No.-02-5251, and the absence of a request

by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

App. 74

BY: /s/ Michael C. McGrail

Michael C. McGrail

Deputy Clerk

App. 75

CONSTITUTION

OF THE UNITED STATES

AMENDMENT V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

App. 76

United States Code

Title 5

Government Organization and Employees,

The Administrative Procedure Act

5 U.S.C. § 555. Ancillary matters

(a) This section applies, according to the provisions

thereof, except as otherwise provided by this subchapter.

(b) A person compelled to appear in person before an

agency or representative thereof is entitled to be accompa-

nied, represented, and advised by counsel or, if permitted

by the agency, by other qualified representative. A party is

entitled to appear in person or by or with counsel or other

duly qualified representative in an agency proceeding. So

far as the orderly conduct of public business permits, an

interested person may appear before an agency or its

responsible employees for the presentation, adjustment, or

determination of an issue, request, or controversy in a

proceeding, whether interlocutory, summary, or otherwise,

or in connection with an agency function. With due regard

for the convenience and necessity of the parties or their

representatives and within a reasonable time, each agency

shall proceed to conclude a matter presented to it. This

subsection does not grant or deny a person who is not a

lawyer the right to appear for or represent others before

an agency or in an agency proceeding.

(c) Process, requirement of a report, inspection, or

other investigative act or demand may not be issued,

made, or enforced except as authorized by law. A person

compelled to submit data or evidence is entitled to retain

or, on payment of lawfully prescribed costs, procure a copy or

transcript thereof, except that in a nonpublic investigatory

App. 77

proceeding the witness may for good cause be limited to

inspection of the official transcript of his testimony.

(d) Agency subpenas authorized by law shall be

issued to a party on request and, when required by rules of

procedure, on a statement or showing of general relevance

and reasonable scope of the evidence sought. On contest,

the court shall sustain the subpena or similar process or

demand to the extent that it is found to be in accordance

with law. In a proceeding for enforcement, the court shall

issue an order requiring the appearance of the witness or

the production of the evidence or data within a reasonable

time under penalty of punishment for contempt in case of

contumacious failure te comply.

(e) Prompt notice shall be given of the denial in

whole or in part of a written application, petition, or other

request of an interested person made in connection with

any agency proceeding. Except in affirming a prior denial

or when the denial is self-explanatory, the notice shall be

accompanied by a brief statement of the grounds for denial.

(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 385.)

5 U.S.C. § 702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action

within the meaning of a relevant statute, is entitled to

judicial review thereof. An action in a court of the United

States seeking relief other than money damages and

stating a claim that an agency or an officer or employee

thereof acted or failed to act in an official capacity or

under color of legal authority shall not be dismissed nor

relief therein be denied on the ground that it is against the

App. 78

United States or that the United States is an indispensa-

ble party. The United States may be named as a defendant

in any such action, and a judgment or decree may be

entered against the United States: Provided, That any

mandatory or injunctive decree shall specify the Federal

officer or officers (by name or by title), and their successors

in office, personally responsible for compliance. Nothing

herein (1) affects other limitations on judicial review or

the power or duty of the court to dismiss any action or

deny relief on any other appropriate legal or equitable

ground; or (2) confers authority to grant relief if any other

statute that grants consent to suit expressly or impliedly

forbids the relief which is sought.

(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub.L. 94-574,

§ 1, Oct. 21, 1976, 90 Stat. 2721.)

5 U.S.C. § 706. Scope of review

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of

the terms of an agency action. The reviewing court shall —

(1) compel agency action unlawfully with-

held or unreasonably delayed; and

(2) hold unlawful and set aside agency ac-

tion, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

App. 79

(B) contrary to constitutional right,

power, privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of statu-

tory right;

(D) without observance of procedure

required by law;

(E) unsupported by substantial evi-

dence in a case subject to sections 556 and

557 of this title or otherwise reviewed on the

record of an agency hearing provided by

statute; or

(F) unwarranted by the facts to the

extent that the facts are subject to trial de

novo by the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of preju-

dicial error.

(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.)

App. 80

Headquarters *Army Regulation 190-8

Departments of the Army, *OPNAVINST 3461.6

the Navy, the Air Force, *AFJI 31-304

and the Marine Corps *MCO 3461.1

Washington, DC ?

1 October 1997 Effective 1 November 1997

Military Police

Enemy Prisoners of War, Retained Personnel,

Civilian Internees and Other Detainees

* * *

1-5. General protection policy

* * *

a. (2) All persons taken into custody by U.S. forces

will be provided with the protections of the GPW until

some other legal status is determined by competent

authority.

1-6. Tribunals

* * *

b. A competent tribunal shall determine the status

of any person not appearing to be entitled to prisoner of

war status who has committed a belligerent act or has

engaged in hostile activities in aid of enemy armed forces,

and who asserts that he or she is entitled to treatment as

a prisoner of war, or concerning whom any doubt of a like

nature exists.

App. 81

g. Persons who have been determined by a compe-

tent tribunal not to be entitled to prisoner of war status

may not be executed, imprisoned, or otherwise penalized

without further proceedings to determine what acts they

have committed and what penalty should be imposed. The

record of every Tribunal proceeding resulting in a deter-

mination denying EPW status shall be reviewed for legal

sufficiency when the record is received at the office of the

Staff Judge Advocate for the convening authority.

* * *

3-8. Judicial proceedings

* * *

d. Accused persons will be notified promptly of the

charges in writing. Charges will be in a language under-

stood by the accused. Those persons will be tried as soon

as possible. A notification (in duplicate) of proceedings

against a detainee will be submitted through channels to

the NPWIC. The NPWIC will send such notification to the

Protecting Power in cases of charges involving the death

penalty or imprisonment for 2 years or more. Upon re-

quest, the Protecting Power will be furnished data on the

status of such proceedings. Furthermore, the Protecting

Power will be entitled, upon request, to be furnished with

all data or any other proceedings started against a de-

tainee. The information will be sent without delay. Trial

will not commence until 3 weeks after the Protecting

Power has been notified. Unless evidence is submitted at

the opening of the trial that this regulation has been fully

complied with, the trial will not proceed. The following

information will be provided:

App. 82

(1) Surname and first name, grade, if proper, ISN,

date of birth, and profession, trade, or prior civil capacity

of the detainee.

(2) Place of internment or confinement.

(3) Specification of the charges with penal provisions

under which they are brought.

(4) Designation of the court that will hear the case.

* * *

App. 83

*FM 3-19.40 (FM 19.40)

Field Manual Headquarters

No. 3-19.40 Department of the Army

Washington, DC, 1 August 2001

Military Police

Internment/Resettlement Operations

* * *

OTHER DETAINEE

1-10. A person in the custody of US armed forces

who has not been classified as an EPW (Article 4,

GPW), an RP (Article 33, GPW), or a CI (Article 78,

GC) is treated as an EPW until a legal status is ascer-

tained by competent authority.

* * *

TRIBUNAL

4-33. A tribunal is held according to Article 5, GPW.

It determines the status of an individual who does not

appear to be entitled to EPW status but —

¢ Commits a belligerent act to aid enemy armed

forces.

¢ Engages in a hostile activity to aid enemy

armed forces.

¢ Asserts that he or she is entitled to treatment

as an EPW.

* * *

App. 84 App. 85

Geneva Convention Relative to the International Covenant on Civil and Political Rights

Treatment of Prisoners of War Adopted and opened for signature, ratification and

Adopted on 12 August 1949 by the Diplomatic Con- accession by General Assembly resolution 2200A

ference for the Establishment of International (XXI) of 16 December 1966

Conventions for the Protection of Victims of War, entry into fi 23 March 1976. in

held in Geneva from 21 April to 12 August, 1949 oe on enti, Dathelin 49

entry into force 21 October 1950 * * *

PARTI PART III

GENERAL PROVISIONS * * .

* * * Article 9

Article 5 1. Everyone has the right to liberty and secu-

rity of person. No one shall be subjected to arbi-

The present Convention shall apply to the persons re- trary arrest or detention. No one shall be

ferred to in Article 4 from the time they fall into the power deprived of his liberty except on such grounds

of the enemy and until their final release and repatriation. and in accordance with such procedure as are es-

tablished by law.

Should any doubt arise as to whether persons, having

committed a belligerent act and having fallen into the

hands of the enemy, belong to any of the categories enu-

merated in Article 4, such persons shall enjoy the protec-

tion of the present Convention until such time as their

status has been determined by a competent tribunal. 3. Anyone arrested or detained on a criminal

charge shall be brought promptly before a judge

or other officer authorized by law to exercise ju-

dicial power and shall be entitled to trial within

a reasonable time or to release. It shall not be

the general rule that persons awaiting trial shall

be detained in custody, but release may be sub-

ject to guarantees to appear for trial, at any

other stage of the judicial proceedings, and,

should occasion arise, for execution of the judge-

ment.

2. Anyone who is arrested shall be informed, at

the time of arrest, of the reasons for his arrest

and shall be promptly informed of any charges

against him.

App. 86

4. Anyone who is deprived of his liberty by ar-

rest or detention shall be entitled to take pro-

ceedings before a court, in order that court may

decide without delay on the lawfulness of his de-

tention and order his release if the detention is

not lawful.

5. Anyone who has been the victim of unlawful

arrest or detention shall have an enforceable

right to compensation.

App. 87

American Declaration of the Rights and Duties

of Man, O.A.S. Res. XXX

Adopted by the Ninth International

Conference of American States (1948)

* * *

Article XXV.

Right of protection from arbitrary arrest. No person may

be deprived of his liberty except in the cases and according

to the procedures established by pre-existing law. No

person may be deprived of liberty for nonfulfillment of

obligations of a purely civil character.

Every individual who has been deprived of his liberty has

the right to have the legality of his detention ascertained

without delay by a court, and the right to be tried without

undue delay or, otherwise, to be released. He also has the

right to humane treatment during the time he is in cus-

tody.

App. 88

American Convention On Human Rights

0.A.S. T.S. NO. 36 (1969)

* * *

Part I - State Obligations And Rights Protected

Chapter II - Civil And Political Rights

Article 7. Right to Personal Liberty

* * *

5. Any person detained shall be brought promptly before

a judge or other officer authorized by law to exercise

judicial power and shall be entitled to trial within a

reasonable time or to be released without prejudice to the

continuation of the proceedings. His release may be

subject to guarantees to assure his appearance for trial.

App. 89

United Nations Body of Principles for the

Protection of All Persons under Any Form of

Detention or Imprisonment

General Assembly

A/RES/43/173

76th plenary meeting

9 December 1988

The General Assembly,

* * *

Convinced that the adoption of the draft Body of

Principles would make an important contribution to the

protection of human rights,

Considering the need to ensure the wide dissemina-

tion of the text of the Body of Principles,

1. Approves the Body of Principles for the Protection

of All Persons under Any Form of Detention or Imprison-

ment, the text of which is annexed to the present resolu-

tion;

Principle 11

1. A person shall not be kept in detention without being

given an effective opportunity to be heard promptly by a

judicial or other authority. A detained person shall have

the right to defend himself or to be assisted by counsel as

prescribed by law.

2. A detained person and his counsel, if any, shall receive

prompt and full communication of any order of detention,

together with the reasons therefor.

App. 90 App. 91

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App. 92

The New York Times

March 16, 2002, Saturday

FOREIGN DESK

A NATION CHALLENGED: CAPTIVES; An Uneasy

Routine at Cuba Prison Camp

By KATHARINE Q. SEELYE (NYT) 1109 words

U.S. NAVAL AIR STATION, Guantanamo Bay, Cuba,

March 15 — An elaborate social system is evolving here

between American military guards and their captives from

the Afghan war.

The system, controlled by the guards and tested repeat-

edly by the inmates, is largely based on privileges — given

mainly so they can be taken away as a way to maintain

discipline and encourage cooperation.

The little extras here at this sweltering, dusty 2.5-acre

barbed-wire camp include novels, like love stories and

Arab legends, with “1001 Arabian Nights” on order. The

inmates regularly drink sweet tea, although though it is

warm, not hot, in case they try to throw it on a guard.

Curried chicken has been added to the dinner menu.

This week, prisoners who were having trouble reading

were given glasses. The detainees are allowed to talk with

each other, and officials have grouped them by language.

They can call out to reporters to proclaim their innocence

without being punished. They apparently receive first-

class medical care — a neurologist and a thoracic surgeon

were recently flown in.

Some prisoners were seen this week riding in golf carts.

Officials said they started using the motorized carts to

App. 93

transport the prisoners to the interrogation huts, several

hundred feet away, because it was quicker and because

the prisoners’ leg shackles were rubbing their ankles raw

when they had to walk there.

Brig. Gen. Michael R. Lehnert, the marine who commands

the task force overseeing the prison camp, said the privi-

leges were useful tools in maintaining discipline because

what was given could be taken away.

“You can’t do much with a detainee if they have nothing,”

he said.

But since the first prisoners arrived on Jan. 11, almost

none of the privileges has been revoked. General Lehnert

said he was reluctant to revoke any, even though the

prisoners have been “acting out,” because he did not want

to encourage them.

“Quite often, what the detainees want is a reaction,” he

said. “They would like to be able to demonstrate, ‘Look at

what’s happening to me! I’m being punished.’”

There are 300 prisoners, from at least 32 countries, being

held in the camp’s 8 foot by 8 foot chain-link cages. Some

are quite young, in their early teens, but most are in their

20’s and 30’s. There is at least one father and son. The

prisoners have close-shaved heads, but many are growing

beards. Some have started doing push-ups and sit-ups.

They are let out into a small pen for 15 minutes twice a

week for exercise, and many pray five times a day.

Still, military officials say the prisoners are enormously

frustrated and angry because their future is so uncertain.

Officials here say the prisoners’ fates are up to Washing-

ton. But the Bush administration has given no indication

App. 94

of what it intends to do with them after they are interro-

gated, has set no timetable for the questioning, and has

not lodged any charges against them.

General Lehnert said most of the prisoners were either

“high-ranking Taliban” or suspected Al Qaeda terrorist,

but the deputy camp commander, Lt. Col. Bill Cline, said

some were “victims of circumstance” and probably inno-

cent.

Secretary of Defense Donald H. Rumsfeld has said that

any number of things could happen to the prisoners,

including their being held indefinitely.

In any case, the military is preparing here for the long

term. Bulldozers are clearing ground on a cliff overlooking

the Caribbean, and construction is to begin this weekend

on a permanent $16 million camp there that can hold up to

2,000 inmates.

The idea of being moved to a permanent camp has left

many prisoners anxious, officials say, and their “acting

out” has taken many forms. They have yelled to their

guards that they are going to kill them. They have thrown

gravel at them.

Many of the prisoners have been on a hunger strike

intermittently since Feb. 27, although the number refus-

ing food and drink has steadily dwindled.

“We’ve been on a hunger strike for 14 days, and nobody

cares!” one prisoner yelled in English at a reporter who

was being given a tour around the perimeter. “We need

the world to know about us. We are innocent here in this

place. We’ve got no legal rights. Nothing. So can somebody

know about us? Can you tell the world about us?”

App. 95

General Lehnert said that if such yelling became disrup-

tive to the camp, he would “put a stop to it,” but that it

had not yet reached that point. He added that he consid-

ered the prisoners “media savvy and shrewd.”

In any case, he told reporters, if the yelling turned into a

problem, reporters, who are kept on a very short leash

here by the military, would be given even less access.

“Most likely, to tell you the truth, we may end up moving

you back so that you can no longer provide the catalyst for

them to do those things,” he said.

To help ease the tension, General Lehnert has taken to

addressing the prisoners once a week over a loudspeaker

at the camp, and did so today for the third time. He told

them that their move to the more permanent cells “does

not mean that you will remain here forever if you have

done nothing wrong,” leaving unsaid what would happen

to them if they had done something wrong.

General Lehnert said repeatedly that he did not have

control over their future. “Nothing you or I can do will

either delay or speed the actions of those who will deter-

mine your future,” he told them. “I cannot honestly tell

you what will happen to you or how long you will be here.”

He offered them little hope, except to say their lives would

“continue to improve” if they followed the rules.

Colonel Cline said he did not perceive the situation as a

explosive, but he knows the prisoners are watching their

captors and sizing them up.

“I don’t sense a powder keg, but theyre watching us 24/7,”

he said. “They’re watching what we do, they’re watching

what time we do it, they're watching how we do it. They're

scheming.” One of the advantages of giving them books to

App. 96

read, he said, is that it takes their eyes of the guards, at

least for a while.

“There’s not much that they want for here,” he added,

“except their freedom.”

App. 97

United States Department of Defense,

News Transcript

Excerpt from Interview with Secretary of Defense,

Donald H. Rumsfeld

February 27, 2002

(Interview with Cale Ramaker, KSPT-ABC, St. Paul,

Minn.)

* * *

Question: And the situation in Camp X-Ray right now in

Guantanamo Bay, Cuba with the detainees, give us an

update on where that’s at in terms of the investigation,

interrogating all of them, and then what happens to the

detainees once you’re done with them.

Rumsfeld: You bet. There are, I don’t know, 300 or 400

people down there at the present time, I suppose 300

something, and they have all now, except for one or two,

been questioned and interrogated, looking for intelligence

information so that we could stop other t~rrorist threats,

people from attacking our country and our friends and

allies and our deployed forces.

We’re now starting the process of doing a series of interro-

gations that involve law enforcement. That is to say to

determine exactly what these individuals have done. Not

what they know of an intelligence standpoint, but what

they've done from a law enforcement standpoint. That

process in underway.

App. 98

United States Department

Of Defense, News Transcript

Excerpt From News Briefing With

Secretary Of Defense Donald H.

Rumsfeld And Chairman, Joint Chiefs

Of Staff General Richard Myers

Thursday, March 28, 2002

* * *

Finally a word about military commissions. There have

been some murmurs in the media about detainees held at

Guantanamo Bay, and specifically whether if one who is

tried by a military commission and, if acquitted, whether

they would then be released or whether they would still be

detained. Let me explain this. During the course of this

war effort, the United States has detained several hun-

dred enemy combatants. As has been the case in previous

wars, the country that takes prisoners generally decides

that they would prefer them not to go back to the battle-

field. They detain those enemy combatants for the dura-

tion of the conflict. They do so for the very simple reason,

which I would have thought is obvious — namely to keep

them from going right back and in this case killing more

Americans and conducting more terrorist acts. Any com-

batants who have the good fortune of being captured

instead of killed during an armed conflict are normally not

in a position to challenge their continued detention. To

release enemy captives so that they could return to the

battlefield would put the lives of more young American

servicemen at risk, and in my view would be mindless.

Let me explain the issue in detail, since it seems to be

troubling some people.

ar eee oe

App. 99

Out of the detainees there may be some who committed

serious problems and who, if the president were to decide,

might be assigned to a military commission to be tried on

one or more of those charges. If one were to be acquitted

by a commission of, for example, a specific criminal

charge, that would not necessarily change the fact that

that individual remains an enemy who was captured

during an armed conflict and therefore one who could

reasonably be expected to go back to his terrorist ways if

released. It might — the procedures we put in place for the

commission to provide full and fair trials. In some cases it

might not be possible to establish beyond a reasonable

doubt that an individual committed a particular crime,

and therefore he might be acquitted of that crime. How-

ever, it does not change the fact that he is an enemy

combatant. He may be guilty of other crimes, but at the

minimum he is someone to be kept off the battlefield, from

going right back and killing more Americans.

Even in a case where an enemy combatant might be

acquitted, the United States would be irresponsible not to

continue to detain them until the conflict is over. Detain-

ing enemy combatants for the duration of a conflict is

universally recognized as responsible and lawful. This is

fully consistent with the Geneva Conventions and other

war authorities. This is a matter of simple common sense,

I would say. The detainees include dangerous terrorists

who committed brutal acts and are sworn to go back to do

it again. To protect the American people, the United

States has every right to hold enemy combatants for the

duration. Today the conflict is still going on. Our troops

are still fighting in Afghanistan, and we do not as yet see

an end. That said, we will continue to treat detainees

humanely and consistent with the principles of the Geneva

App. 100

Convention. We will proceed with trials. In some cases we

will proceed with transfers to another country — their

country of nationality in some cases, and in some cases

releases if in fact the additional information proves that

they are individuals who could be released without risk to

— that they might conduct additional terrorists acts or go

back to the battlefield to oppose what we are doing.

I can assure you the United States does not want to keep

any of them any longer than we have to. While we will

treat them humanely and lawfully, we will do everything

we can to protect the American people and our friends and

allies from being attacked again. And we have no intention

of releasing people who have shown that they are dedi-

cated to killing more Americans.

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