Gherebi v. Bush

• Decision Date: 13 May 2003
• Docket Number: No. CV 03-1267-AHM.,CV 03-1267-AHM.
• Citation: 262 F.Supp.2d 1064
• Court: U.S. District Court — Central District of California
• Parties: Belaid GHEREBI, Petitioner, v. George Walker BUSH, et al., Respondents.

262 F.Supp.2d 1064

Belaid GHEREBI, Petitioner, v. George Walker BUSH, et al., Respondents.

No. CV 03-1267-AHM.

United States District Court, C.D. California.

May 13, 2003.

Stephen Yagman, Kathryn S. Bloomfield, Marion R. Yagman, Joseph Reichmann, Yagman & Yagman & Reichmann & Bloomfield, Venice Beach, CA, for petitioner.

Becky Walker, Asst. U.S. Attorney, Debra Yang, U.S. Attorney, Los Angeles, CA, for respondents.

ORDER DISMISSING PETITION FOR LACK OF JURISDICTION

MATZ, District Judge.

INTRODUCTION

The petition for a writ of habeas corpus filed in this case alleges that Respondents President Bush, Secretary of Defense Rumsfeld and unnamed "military personnel" captured Falen Gherebi in Afghanistan and, since January 2002, have detained him at the Guantanamo Bay Naval Base ("Guantanamo") in Cuba. The Petitioner, Belaid Gherebi, is Falen Gherebi's brother.

Belaid Gherebi alleges that his brother is being held incommunicado, without aid of counsel, and in violation of the United States Constitution and the Third Geneva Convention. Among other forms of relief, Petitioner asks that his brother be granted access to legal counsel and "be brought physically before the Court for a determination of his conditions of detention, confinement, and status ...." Mem. of Law in Support of Amended Verified Petition for Writ of Habeas Corpus, at 3.

Petitioner and Respondents seek a prompt ruling on the matter of this Court's jurisdiction because they intend to proceed expeditiously to the Ninth Circuit Court of Appeals.¹ The Court is willing to accommodate their request, because the jurisdictional question addressed here is one of great importance: Do the hundreds of persons detained at Guantanamo have the right to challenge their confinement in a United States federal court?

The Court concludes that Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), and later decisions construing Johnson, compel the answer "no."

The Court reaches this conclusion reluctantly, however, because the prospect of the Guantanamo captives' being detained indefinitely without access to counsel, without formal notice of charges, and without trial is deeply troubling. And that is why a prompt ruling to speed appellate review is appropriate.

BACKGROUND

The events leading to this case are well known. Following the terrorist attacks of September 11, 2001, Congress authorized the President "to use all necessary and appropriate force" against those responsible. Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001). Pursuant to that authorization, the President sent American forces to Afghanistan to wage what has been commonly referred to (but not formally declared) as a "war" against the Taliban government and the terrorist network known as Al Qaeda. Beginning in early January 2002, the Armed Forces transferred to Guantanamo scores of individuals, including Falen Gherebi, who were captured by the American military during its operations in Afghanistan.

On January 20, 2002, a group of journalists, lawyers, professors, and members of the clergy filed a petition for habeas relief on behalf of unidentified individuals detained involuntarily at Guantanamo. That petition also named as Respondents President Bush, Secretary Rumsfeld and other military personnel. The matter was assigned to this Court. After ordering the parties to brief the threshold question of jurisdiction, the Court heard oral argument and dismissed the petition. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036 (C.D.Cal.2002) ("Coalition I").

The first basis for this Court's dismissal of the Coalition I petition was that the named petitioners lacked standing. The Ninth Circuit affirmed that ruling on appeal but vacated this Court's additional rulings as to the applicability of Johnson Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir.2002).² Respondent do not challenge Petitioner's "next friend" standing in this case, however, and the issue of johnson's effect can no longer be avoided.

ANALYSIS

Because the Supreme Court's Johnson opinion compels dismissal of this petition the Court will begin with an examination of that decision.

A. Johnson

The following description of Johnson is taken from this Court's ruling in Coalition I.

In Johnson, Mr. Justice Jackson described "the ultimate question" as "one of jurisdiction of civil courts of the United States vis-a-vis military authorities in dealing with enemy aliens overseas." The case arose out of World War II. The habeas petitioners were twentyone German nationals who claimed to have been working in Japan for "civilian agencies of the German government" before Germany surrendered on May 8, 1945. They were taken into custody by the United States Army and convicted by a United States Military Commission of violating laws of war by engaging in continued military activity in Japan after Germany's surrender, but before Japan surrendered. The Military Commission sat in China with the consent of the Chinese government. After trial and conviction there the prisoners were repatriated to Germany to serve their sentences in a prison whose custodian was an American Army officer. While in Germany, the petitioners filed a writ of habeas corpus claiming that their right under the Fifth Amendment to due process other unspecified rights under the Constitution and laws of the United States and provisions of the Geneva Convention governing prisoners of war all had been violated. They sought the same relief as petitioners here: that they be produced before the federal district court to have their custody justified and then be released. They named as respondents the prison commandant, the Secretary of Defense and others in the civilian and military chain of command.

Reversing the Court of Appeals, the Supreme Court in Johnson upheld the district court's dismissal of the petition on the ground that petitioners had no basis for invoking federal judicial power in any district. In reaching that conclusion, the Supreme Court stated the following:

• "[T]he privilege of litigation 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 prisoners at no relevant time were within any territory over which the United States is sovereign and the circumstances of their offense [and] their capture ... were all beyond the territorial jurisdiction of any court of the United States."

• "A basic consideration in habeas corpus practice is that the prisoner will be produced before the court.... To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing.... The writ, since it is ... [argued] to be a matter of right, would be equally available to enemies during active hostilities .... Such trials would hamper the war effort .... It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."

189 F.Supp.2d at 1046-47 (citations and footnotes omitted).

The effect of Johnson is that the Guantanamo detainees' ability to invoke jurisdiction in any district court "depends not on the nature of their claims but on whether the Naval Base at Guantanamo Bay is under the sovereignty of the United States." Id. at 1048-49. In Coalition I, this Court determined that the Naval Base is not within sovereign United States territory and that, as a result, no federal court would have jurisdiction to hear the petitioners' claims. Id. at 1049-50.³ The Court reaches the same conclusion here.

B. Post-Coalition I Decisions

1. The Ninth Circuit Decision in Coalition I

Although the Court of Appeals vacated this Court's rulings about Johnson and the sovereign status of Guantanamo, in its opinion the Ninth Circuit stated:

There is no question that the holding in Johnson represents a formidable obstacle to the rights of the detainees at Camp X-Ray to the writ of habeas corpus; it is impossible to ignore, as the case well matches the extraordinary circumstances here.

Coalition of Clergy v. Bush, 310 F.3d at 1164 n. 4.

2. Rasul v. Bush

In Rasul v. Bush, 215 F.Supp.2d 55 (D.D.C.2002), the district court dismissed two cases brought by Guantanamo detainees. The court ruled that it did not have jurisdiction because Guantanamo "is outside the sovereign territory of the United States" and because, under Johnson, "writs of habeas corpus are not available to aliens held outside the sovereign territory of the United States." 215 F.Supp.2d at 72-73.

3. Al Odah v. United States

In Al Odah v. United States, 321 F.3d 1134 (D.C.Cir.2003), the Court of Appeals for the District of Columbia Circuit relied heavily on Johnson to affirm the district court's decision in Rasul and also to dismiss a third petition brought by the wife of an Australian citizen detained at Guantanamo. Al Odah rejects many of the arguments Petitioner makes here and describes the parallels between these cases and Johnson much as this Court did in Coalition I:

[T]he Guantanamo detainees have much in common with the German prisoners in [Johnson]. They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they they are now aborad, they are in the custody of the American military and they have never had any presence in the United States... [W]e believe that under [Johnson ] these factors preclude the detainees from seeking habeas relief in the courts of the United States.

321 F.3d at 1140

4. Additional Post-Coalition I Decisions

Perhaps because Johnson so well matches the "extraordinary circumstances" of recent events, Coalition, of Clergy, 310 F.3d at 1164 n. 4, several courts have cited it in ruling on challenges to government...