Coalition of Clergy v. Bush, CV 02-570 AHM (JTLX).

• Decision Date: 21 February 2002
• Docket Number: No. CV 02-570 AHM (JTLX).,CV 02-570 AHM (JTLX).
• Parties: COALITION OF CLERGY, et al., Petitioners, v. George Walker BUSH, et al., Respondents.
• Court: U.S. District Court — Central District of California

189 F.Supp.2d 1036

COALITION OF CLERGY, et al., Petitioners, v. George Walker BUSH, et al., Respondents.

No. CV 02-570 AHM (JTLX).

United States District Court, C.D. California.

February 21, 2002.

Stephen Yagman, Kathryn S. Bloomfield, Joseph Reichmann, Yagman & Yagman & Reichmann & Bloomfield, Venice Beach, CA, Erwin Chemerinsky, Los Angeles, CA, for petitioners.

John S. Gordon, United States Attorney, Ronald L. Cheng, Lawrence Ng, Becky Walker, Douglas A. Axel, Los Angeles, CA, Paul Clement, Deputy Solicitor General, Alice S. Fisher, Deputy Asst. Attorney General, Washington, D.C., for respondents.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS

MATZ, District Judge.

I. PROCEDURAL BACKGROUND AND SUMMARY OF RULING

This case results from the sudden attacks on the United States on September 11, 2001, resulting in the deaths of thousands of innocent civilians. Within a few days, the President, with the approval of Congress (Pub.L. No. 107-40 (September 8, 2001)), commanded the Armed Forces of the United States to use all necessary and appropriate force against the persons responsible for those attacks, who soon came to be known as the "Al Qaeda terrorist network." The President dispatched American forces to Afghanistan, where that group was believed to be functioning with the active support of the "Taliban" government then in power in that country. In the course of combat operations, American forces, as well as other nations allied with the United States, captured or secured the surrender of thousands of persons. Beginning in early January 2002, the Armed Forces transferred scores of these captives to the United States Naval Base at Guantanamo Bay, Cuba ("Guantanamo"). Their confinement in Guantanamo led to this action.

Petitioners are a group referring to themselves as the "Coalition of Clergy, Lawyers, and Professors." They include at least two journalists; ten lawyers; three rabbis; and a Christian pastor. Some of these individuals are prominent professors at distinguished law schools or schools of journalism. One is a former Attorney-General of the United States. On January 20, 2002 they filed a Verified Petition for Writ of Habeas Corpus on behalf of "Persons Held Involuntarily at Guantanamo Naval Air Base, Cuba." In substance, the petition alleges that the captives held at Guantanamo (the "detainees") are in custody in violation of the Constitution or the laws or treaties of the United States, in that they: (1) have been deprived of their liberty without due process of law, (2) have not been informed of the nature and cause of the accusations against them and (3) have not been afforded the assistance of counsel. The petition also suggests, somewhat elliptically, that the detainees have rights under the Geneva Convention that have been violated, such as "prohibition of [sic] transferring persons taken prisoner in [sic] war from the country of their capture." (Pet. Memo.7:16-17)

Petitioners allege that "[b]ecause the persons for whom relief is sought appear to be held incommunicado and have been denied access to legal counsel, application properly is made by petitioners acting on their behalf. 28 U.S.C. § 2242...." (Id. 7:20-23)

The relief that petitioners seek is a writ or order to show cause (1) directing the respondents to "identify by full name and country of domicile and all other identifying information in their possession each person held by them within three days;" (2) directing respondents "to show the true cause(s) of the detention of each person;" and (3) directing respondents to produce the detainees at a hearing in this court. (Id. 8:14-23; 9:1-3)

The persons named as respondents are President George W. Bush; Secretary of Defense Donald H. Rumsfeld; Richard B. Myers, the Chairman of the Joint Chiefs of Staff; Gordon R. England, the Secretary of Navy; and five other named individuals and "1000 Unknown Named United States Military Personnel," all of whom are alleged to be military officers responsible for the operations at the Guantanamo Naval Base.

On January 22, 2002, two days after the petition was filed, the Court presided over a brief hearing at which it expressed strong doubts that it has jurisdiction to entertain the petition. The Court ordered the parties to address that threshold question in written briefs. They have done so and appeared at a second hearing today.¹

Having reviewed and considered all the arguments and conducted additional research on its own, the Court rules as follows:

1. Petitioners do not have standing to assert claims on behalf of the detainees.

2. Even if petitioners did have standing, this court lacks jurisdiction to entertain those claims.

3. No federal court would have jurisdiction over petitioners' claims, so there is no basis to transfer this matter to another federal district court.

4. The petition must be dismissed.

II. THE WRIT OF HABEAS CORPUS

Given the importance of the issues that petitioners proclaim are at stake in this case, a decidedly abbreviated description of the writ of habeas corpus is appropriate.

The writ of habeas corpus, providing a means by which the legal authority under which a person is detained can be challenged, is of immemorial antiquity ... The precise origin of the writ ... is not certain, but as early as 1220 A.D. the words "habeas corpora" are to be found in an order directing an English sheriff to produce parties to a trespass action before the Court of Common pleas.... Today it is regarded as "perhaps the most important writ known to the constitutional law of England ...."

Its significance in the United States has been no less great. Article I, ¶ 9 of the Constitution gives assurance that the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it, and its use by the federal courts was authorized [as long ago as in] ... the Judiciary Act of 1789.

WRIGHT, MILLER AND COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D § 4261 and n. 3 (citations omitted).

The statutory authorization for a federal judge to issue a writ of habeas corpus currently is set forth in 28 U.S.C. § 2241, et seq. In essence, when a judge issues such a writ, the authorities responsible for the petitioner's custody are required to demonstrate that he is being detained lawfully. As Mr. Justice Black put it, the "grand purpose" of the writ of habeas corpus is "the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty." Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963).²

Although the writ of habeas corpus plays a central role in American jurisprudence, there are many limitations on a court's authority to issue such a writ. Here, in urging the court to dismiss the petition—i.e., effectively refuse to issue a writ—respondents invoke three such limitations. They contend: (1) petitioners lack "standing" to come to this court—i.e., they are not entitled to ask the court on the detainees' behalf to order respondents to justify the detention of the detainees; (2) this particular federal court lacks jurisdiction to entertain the petition; and (3) no federal district court anywhere has jurisdiction. Respondents are correct as to all three contentions.

III. PETITIONERS DO NOT HAVE STANDING

Respondents argue that petitioners lack standing to assert claims on behalf of the detainees. Whether a plaintiff (or, in the case of a habeas proceeding, a petitioner) has standing "is the threshold question in every federal case, determining the power of the court to entertain the suit .... The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally...." Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

28 U.S.C. § 2242 provides that "[a]pplication for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf." (Emphasis added). Courts use the term "next friend" to describe the person who acts on behalf of another person (the "real party in interest") for whom the relief is sought. The "next friend" has the burden "clearly to establish the propriety of his status and thereby justify the jurisdiction of the court." Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135 (1990).

A number of courts have allowed habeas petitions to be filed by "next friends," although in circumstances different from those here. See, e.g., U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955) (sister, on behalf of ex-serviceman civilian who was arrested by military authorities and taken to Korea to stand trial before a court-martial); Vargas v. Lambert, 159 F.3d 1161 (9th Cir.1998) (mother of state court prisoner slated to be executed for murder, where mother made showing sufficient to establish her son's lack of mental competence to waive his right of appeal); Nash v. MacArthur, 184 F.2d 606 (D.C.Cir.1950) (attorney, on behalf of seven Japanese nationals convicted of war crimes by military commissions).

In seeking dismissal of this petition on the basis that petitioners lack "next friend" standing, respondents rely primarily on Whitmore v. Arkansas, supra. In Whitmore, the named petitioner was a death row inmate. He sought to intervene in an Arkansas state court criminal proceeding in order to prosecute an appeal on behalf of one Simmons, who had been convicted of multiple murders and had waived his right to direct appeal. Whitmore tried to get permission to appeal on behalf of Simmons on the basis that the heinous facts in Simmons's cases would become included in a database that Arkansas uses for purposes of comparative reviews of capital sentences. Whitmore contended...