Gherebi v. Bush

Decision Date18 December 2003
Docket NumberNo. 03-55785.,03-55785.
PartiesFalen GHEREBI<SMALL><SUP>*</SUP></SMALL>, Petitioner-Appellant, v. George Walker BUSH; Donald H. Rumsfeld, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Stephen Yagman, Esq., Venice, CA, for Petitioner-Appellant.

Paul Clement, Department of Justice, Washington, DC, for Respondents-Appellees.

Appeal from the United States District Court for the Central District of California; A. Howard Matz, District Judge, Presiding.

Before: REINHARDT, GRABER, Circuit Judges, and SHADUR, Senior Judge.**

Opinion by Judge REINHARDT; Partial Concurrence by Judge GRABER

REINHARDT, Circuit Judge:

I. BACKGROUND

This case presents the question whether the Executive Branch may hold uncharged citizens of foreign nations in indefinite detention in territory under the "complete jurisdiction and control" of the United States while effectively denying them the right to challenge their detention in any tribunal anywhere, including the courts of the U.S. The issues we are required to confront are new, important, and difficult.

In the wake of the devastating terrorist attacks on September 11, 2001, Congress authorized the President to

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 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, 115 Stat. 224 (2001). Pursuant to that authorization, the President sent U.S. forces to Afghanistan to wage a military operation that has been commonly termed — but never formally declared — a "war" against the Taliban government and the terrorist network known as Al Queda.

Starting in early January 2002, the Armed Forces began transferring to Guantanamo, a United States naval base located on territory physically situated on the island of Cuba,1 scores of individuals who were captured by the American military during its operations in Afghanistan. The captured individuals were labeled "enemy combatants." Now, for almost two years, the United States has subjected over six hundred of these captives to indefinite detention,2 yet has failed to afford them any means to challenge their confinement, to object to the failure to recognize them as prisoners of war, to consult with legal counsel, or even to advance claims of mistaken capture or identity. Despite U.S. officials' recent stated intention to move to begin a sorting of the detainees, electing which to release and which to try before military tribunals on criminal charges, and the administration's designation several months ago of six detainees (including two Britons and one Australian) deemed eligible for military trials, see Neil A. Lewis, Red Cross Criticizes Indefinite Detention in Guantanamo, N.Y. TIMES, Oct. 10, 2003, at A1, no military tribunal has actually been convened. Nor has a single Guantanamo detainee been given the opportunity to consult an attorney, had formal charges filed against him, or been permitted to contest the basis of his detention in any way. Moreover, top U.S. officials, including Secretary of Defense Rumsfeld, have made it clear that the detainees may be held in their present circumstances until this country's campaign against terrorism ends. Id. The administration has, understandably, given no indication whether that event will take place in a matter of months, years, or decades, if ever.3

On January 20, 2002, a group of journalists, lawyers, professors, and members of the clergy filed a petition for habeas relief before the United States District Court for the Central District of California on behalf of the class of unidentified individuals detained involuntarily at Guantanamo. The petition named as respondents President Bush, Secretary Rumsfeld, and a number of military personnel. See Coalition of Clergy v. Bush, 189 F.Supp.2d 1036 (C.D.Cal.2002). After the district court dismissed the petition for lack of "next-friend" standing, or, alternatively, for lack of jurisdiction under Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), this court affirmed on the ground that petitioners lacked standing, but vacated the court's jurisdictional rulings regarding Johnson. See Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir.2002).

Following our decision, Belaid Gherebi filed an amended next-friend habeas petition in this Court, on behalf of his brother Faren, in which the standing issue is not present. In his February 2003 Amended Petition, Gherebi4 alleged violations of the U.S. Constitution and the Third Geneva Convention arising out of his involuntary detention at Guantanamo, a naval base "under the exclusive and complete jurisdiction of the respondents," and he further claimed that, "Respondents have characterized Gherebi as an `unlawful combatant,' and have denied him status as a prisoner of war, have denied him rights under the United States Constitution, ... have denied him access to the United States Courts," and have denied him access to legal counsel.5 The government did not respond. Thereafter, Gherebi urged this Court to resolve the "threshhold question" of federal subject matter jurisdiction in a motion to grant his petition summarily.6 At that point, the government moved to dismiss Gherebi's petition without prejudice to its being re-filed in the district court, or alternatively, to transfer it to the district court so that the district judge could decide the question of jurisdiction. A motions panel of this Court granted the government's request, transferring Gherebi's petition to the United States District Court for the Central District of California. After additional motions were filed with the district court urging summary disposition of the jurisdictional question, that court issued a reasoned order on May 13, 2003 dismissing Gherebi's petition for lack of jurisdiction. See Gherebi v. Bush, No. CV 03-1267-AHM(JTL) (C.D.Cal. May 13, 2003) (order dismissing petition for lack of jurisdiction). The court held that Johnson v. Eisentrager controlled and foreclosed jurisdiction over Gherebi's petition in any federal court because Guantanamo "is not within sovereign U.S. territory." Id. at 5. In so holding, the court described its conclusion as "reluctant[]," id. at 2, and expressed hope that "a higher court w[ould] find a principled way" to provide the remedy of habeas corpus. Id. at 15.

On appeal before this Court, Gherebi argues that (1) the district court erred in holding that Johnson v. Eisentrager precludes the district courts of this nation from exercising jurisdiction over his petition; and (2) the District Court for the Central District of California has jurisdiction to hear the writ because the custodians of the prisoners are within the jurisdiction of the court. We agree with Gherebi on both points. In so holding, we underscore that the issue before us is not whether Gherebi's detention will withstand constitutional inquiry, but rather whether the courts of the United States are entirely closed to detainees held at Guantanamo indefinitely — detainees who would appear to have no effective right to seek relief in the courts of any other nation or before any international judicial body.

We recognize that the process due "enemy combatant" habeas petitioners may vary with the circumstances and are fully aware of the unprecedented challenges that affect the United States' national security interests today, and we share the desire of all Americans to ensure that the Executive enjoys the necessary power and flexibility to prevent future terrorist attacks. However, even in times of national emergency — indeed, particularly in such times — it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike. Here, we simply cannot accept the government's position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement. We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, and that, contrary to the government's contention, Johnson neither requires nor authorizes it. In our view, the government's position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law.7

Accordingly, we reverse the ruling of the district court that jurisdiction over Gherebi's habeas petition does not lie.

II. DISCUSSION

A. Johnson v. Eisentrager as a Bar to Jurisdiction

To support its contention that habeas jurisdiction does not lie with respect to the Guantanamo detainees in the Central District or any other district court of the United States, the government relies primarily on Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950). Johnson involved a habeas petition by German enemy prisoners detained in Landsberg Prison, Germany, after being tried and sentenced to a fixed term of confinement by a U.S. Military Commission in Nanking, China for offenses committed in China subsequent to the unconditional surrender of Germany at the end of World War II. The Court declined to exercise jurisdiction, holding that the German national petitioners, tried in China for acts committed there, and confined to prison in Germany, had no right to seek a writ of habeas corpus in a United States court...

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    • International Law Studies No. 87, January 2011
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