Al Odah v. U.S., No. 02-5251.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Randolph
• Citation: 321 F.3d 1134
• Parties: Khaled A. F. AL ODAH, et al., Appellants, v. UNITED STATES of America, et al., Appellees.
• Docket Number: No. 02-5288.,No. 02-5284.,No. 02-5251.
• Decision Date: 11 March 2003

321 F.3d 1134 Khaled A. F. AL ODAH, et al., Appellants,
v.
UNITED STATES of America, et al., Appellees. No. 02-5251. No. 02-5284. No. 02-5288. United States Court of Appeals, District of Columbia Circuit. Argued December 2, 2002. Decided March 11, 2003.

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Appeals from the United States District Court for the District of Columbia (02cv00299), (02cv00828) and (02cv01130).

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 Organizations 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., U.S. 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 Afghanistan and held abroad in United States military custody at the Guantanamo Bay Naval Base in Cuba brought three actions contesting the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions.

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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 concerning Captures on Land and Water." Id. 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, 63 S.Ct. 2, 9-10, 87 L.Ed. 3 (1942).

In response to the attacks of September 11, 2001, and in the exercise of its constitutional powers, 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 attacks and recognized the President's "authority 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, 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 campaign, 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 Guantanamo 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 Procedure 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 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, although 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

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alleged to be the Commander of Joint Task Force 160. The petition claims that the Australian detainee was living in Afghanistan when the Northern 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 Guantanamo 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 Clause; 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 interrogations, 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 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 other 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.2002). In the court's view all of the detainees' claims went to the lawfulness of their custody and thus were cognizable only in habeas corpus. Id. at 62-64. Relying upon Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (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.

II.

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 bringing the action — clergy, lawyers, and law professors — were not proper "next friends." Coalition of Clergy, Lawyers & 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 prosecuting 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 because of their inaccessibility. Whitmore v. Arkansas, 495 U.S. 149, 162, 110 S.Ct. 1717, 1726-27, 109 L.Ed.2d 135 (1990). For the federal

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courts, Congress codified the practice in 1948: a habeas corpus petition now may be brought "by the person for whose relief it is intended 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 U.S. at 163-64, 110 S.Ct. at 1727-28. We shall therefore treat the cases as if the detainees themselves were prosecuting the actions. Id. at 163, 110 S.Ct. at 1727.

In each of the three cases, the detainees deny that they are...