Rasul v. Bush / al Odah v. U.S.: Solicitor General's Brief in Opposition

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Nos. 03-334 and 03-343
In The Supreme Court of the United States

SHAFIQ RASUL, ET AL., PETITIONERS

v.

GEORGE W. BUSH, ET AL.

FAWZI KHALID ABDULLAH FAHAD AL ODAH,
ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.


ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


BRIEF FOR THE RESPONDENTS IN OPPOSITION

 THEODORE B. OLSON
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
PAUL D. CLEMENT
Deputy Solicitor General
GREGORY G. GARRE
DAVID B. SALMONS
Assistants to the Solicitor General
DOUGLAS N. LETTER
ROBERT M. LOEB
CATHERINE Y. HANCOCK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


QUESTION PRESENTED

Whether the court of appeals properly held that, under Johnson v. Eisentrager,339 U.S. 763 (1950), United States courts lack jurisdiction to considerchallenges to the legality of the detention of aliens captured abroad inconnection with ongoing hostilities and held outside the sovereign territoryof the United States at the Guantanamo Bay Naval Base, Cuba.


In the Supreme Court of the United States

No. 03-334

SHAFIQ RASUL, ET AL., PETITIONERS

v.

GEORGE W. BUSH, ET AL.

No. 03-343

FAWZI KHALID ABDULLAH FAHAD AL ODAH,
ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION


OPINIONS BELOW

The decision of the court of appeals (Pet. App. 1a-29a).1 is reportedat 321 F.3d 1134. The opinion of the district court (Pet. App. 32a-64a)is reported at 215 F. Supp. 2d 55.

JURISDICTION

The judgment of the court of appeals was entered on March 11, 2003. Rehearingwas denied on June 2, 2003 (Pet. App. 30a-31a). The petition for a writof certiorari in No. 03-334 was docketed on September 3, 2003, and the petitionfor a writ of certiorari in No. 03-343 was docketed on September 5, 2003.The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

    1.       On September 11, 2001, the al Qaeda terrorist network launched a vicious,coordinated attack on the United States, murdering approximately 3000 persons.In response, the President, in his capacity as Commander in Chief, tooksteps to protect the homeland and prevent additional threats. Congress backedthe President's use of force against the "nations, organizations, orpersons he determines planned, authorized, committed, or aided the terrorist[September 11] attacks * * * or harbored such organizations or persons."Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a),115 Stat. 224. Congress emphasized that the forces responsible for the September11th attacks "continue to pose an unusual and extraordinary threatto the national security," and that "the President has authorityunder the Constitution to take action to deter and prevent acts of internationalterrorism against the United States." Ibid.

    The President dispatched the armed forces of the United States to Afghanistanto seek out and subdue the al Qaeda terrorist network and the Taliban regime.In the course of that campaign-which remains ongoing-the United States andits allies have captured or taken control of thousands of individuals. Asin virtually every other major armed conflict in the Nation's history,


the military has determined that many of those captured in connection with thehostilities in Afghanistan should be detained during the ongoing conflictas enemy combatants. Such detention serves the vital objectives of preventingcombatants from continuing to aid our enemies and gathering intelligenceto further the overall war effort. The military's authority to capture anddetain such combatants is both well-established and time-honored. See, e.g.,Duncan v. Kahanamoku, 327 U.S. 304, 313-314 (1946); Ex parte Quirin, 317U.S. 1, 30-31 & n.8 (1942); L. Oppenheim, International Law 368-69 (H.Lauterpacht ed., 7th ed. 1952); W. Winthrop, Military Law and Precedents788 (2d ed. 1920).

    The United States military has transferred some of these combatants fromAfghanistan to the United States Naval Base at Guantanamo Bay, Cuba. TheGuantanamo Naval Base is in the sovereign territory of the Republic of Cuba.The United States occupies the base under a 1903 Lease Agreement with Cuba,which was extended by a 1934 Treaty.2 The Lease Agreement specifically providesthat Cuba retains sovereignty over the leased lands:

    While on the one hand the United States recognizes the continuance ofthe ultimate sovereignty of the Republic of Cuba over the [leased area],on the other hand the Republic of Cuba consents that during the period ofthe occupation by the United


States of said areas under the terms of thisagreement the United States shall exercise complete jurisdiction and controlover and within said areas * * * .

    Lease Agreement art. III, T.S. No. 418 (6 Bevans at 1113). A supplementalagreement between the two nations further provides that the United Statesmay not permit anyone "to establish or maintain a commercial, industrialor other enterprise" on Guantanamo. Lease of Certain Areas for Navalor Coaling Stations, July 2, 1903, U.S.-Cuba, art. III, T.S. No. 426. Thatprovision is compatible with Cuba's explicit retention of "ultimatesovereignty" over Guantanamo under the Lease Agreement quoted above.

    The President has announced that "[t]he United States is treatingand will continue to treat all of the individuals detained at Guantanamohumanely and, to the extent appropriate and consistent with military necessity,in a manner consistent with the principles of the Third Geneva Conventionof 1949." Office of the White House Press Secretary, Fact Sheet, Statusof Detainees at Guantanamo 1 (Feb. 7, 2002) <www. whitehouse.gov/news/releases/2002/02/20020207-13.html>.In the past year and a half, more than 60 Guantanamo detainees who the militaryhas determined should no longer be detained for intelligence-gathering orother purposes have been released or repatriated to the custody of othernations.

    2.       On February 19, 2002, individuals claiming to be the parents of threeBritish and Australian nationals detained at Guantanamo filed a petitionfor habeas corpus as the "next friends" of those detainees. Rasulv. Bush. The detainees at issue in Rasul (No. 03-334) are aliens who werecaptured in connection with the


military campaign in Afghanistan. The habeaspetition challenged, inter alia, the legality of those aliens' detentionand named as respondents the President, Secretary of Defense, and two militarycommanders at Guantanamo. Pet. App. 4a. The government moved to dismissthe petition, inter alia, for lack of jurisdiction on the ground that, underJohnson v. Eisentrager, 339 U.S. 763 (1950), United States courts lack jurisdictionover claims filed by or on behalf of aliens, like the Guantanamo detainees,who are detained outside of the sovereign territory of the United States.

    On May 1, 2002, a second action, Al Odah v. United States, was filedon behalf of another group of Guantanamo detainees against the President,Secretary of Defense, Chairman of the Joint Chiefs of Staff, two militarycommanders at Guantanamo, and the United States. The plaintiffs in Al Odah(No. 03-343) claim to be the relatives of twelve Kuwaiti nationals who werecaptured abroad in connection with the hostilities in Afghanistan and arebeing detained by the United States military at Guantanamo. Although invokingthe district court's jurisdiction under, inter alia, the federal habeasstatute, the Al Odah plaintiffs declined to style their action as a petitionfor a writ of habeas corpus and instead purported to challenge the legalityof the captured aliens' detention under the Alien Tort Statute (ATS), 28U.S.C. 1350, the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,and directly under the Fifth Amendment to the Constitution. They sought,inter alia, an order declaring that the aliens' detention is arbitrary andunlawful, and an order providing them an opportunity to consult with counsel.Pet. App. 3a-4a.

    The Al Odah plaintiffs moved to consolidate their case with Rasul forthe purpose of resolving the jurisdiction issue and moved for a preliminaryinjunction to


enjoin defendants from continuing to detain the 11 Kuwaitiplaintiffs now under custody of the United States without granting themcertain relief. Pet. App. 37a. In response, the government moved to dismissAl Odah because, inter alia, the court lacked jurisdiction under Eisentrager.

    3.      On July 30, 2002, after holding a consolidated hearing in both caseson the jurisdictional issue, the district court granted the government'smotions to dismiss in Rasul and Al Odah. Pet. App. 32a-64a. The districtcourt held that "Eisentrager, and its progeny, are controlling andbars the Court's consideration of the merits of these two cases." Id.at 48a (citation omitted). The court explained that, "[i]f an alienis outside the country's sovereign territory, then courts have generallyconcluded that the alien is not permitted access to the courts of the UnitedStates to enforce the Constitution." Id. at 55a. Because the detaineesin these cases are aliens held abroad, the court held that, under Eisentrager,it lacked jurisdiction over their claims. Id. at 62a.

    The district court rejected the petitioners' argument that Eisentragerapplies only to the detention of "enemy" aliens. The court explained(Pet. App. 51a) that Eisentrager "did not hinge on the fact that thepetitioners were enemy aliens," but instead "broadly applies toprevent aliens detained outside the sovereign territory of the United Statesfrom invoking a petition for a writ of habeas corpus." Id. at 54a.In addition, the court rejected petitioners' argument to circumvent Eisentragerby arguing that the United States exercises "de facto" controlover Guantanamo. As the court explained, Eisentrager "never qualifiedits definition of sovereignty" based on a "de facto theory ofsovereignty." Id. at 56a. Accordingly, because "[i]t is undisputed,


even by the parties, that Guantanamo Bay is not part of the sovereign territoryof the United States," the court concluded that Eisentrager bars thecourt's jurisdiction. Id. at 55a, 63a.

    4. a.     The court of appeals affirmed. Pet. App. 1a-29a. The court concludedthat "the detainees [in these cases] are in all relevant respects inthe same position as the prisoners in Eisentrager" and thus held that,under Eisentrager, "the [United States] courts are not open to them."Id. at 18a.

    The court of appeals rejected petitioners' attempt to distinguish Eisentrager"on the ground that the prisoners there were 'enemy aliens.'"Pet. App. 7a. As the court explained, although "the Supreme Court referredto the Eisentrager prisoners as 'enemy aliens," id. at 8a-9a, "Eisentrageritself directly tied jurisdiction to the extension of constitutional provisions,"id. at 13a. In particular, the court observed, Eisentrager stated that,"in extending constitutional protections beyond the citizenry, theCourt has been at pains to point out that it was the alien's presence withinits territorial jurisdiction that gave the Judiciary power to act."Ibid. (quoting 339 U.S. at 771). That aspect of Eisentrager, the court ofappeals explained, was reaffirmed by this Court's decision in United Statesv. Verdugo-Urquidez, 494 U.S. 259 (1990). Pet. App. 11a-12a.

    Moreover, the court of appeals continued, Eisentrager stated that "the'privilege of litigation has been extended to aliens, whether friendly orenemy, only because permitting their presence in the country implied protection.'"Pet. App. 13a. (quoting 339 U.S. at 777-778) (emphasis added by court ofappeals). In declining to subject the overriding jurisdictional questionin this case to "factual determinations at the threshold" on matterssuch as an alien's "enemy" status, the court further reasonedthat "the Court in Eisentrager did not decide to avoid all the [separation-of-powers]problems exercising jurisdiction would have caused, only to confront thesame problems in determining whether jurisdiction exists in the first place."Ibid. Accordingly, the court of appeals concluded that Eisentrager applies"regardless of whether [the Guantanamo detainees] are enemy aliens."Id. at 11a.3

    The court of appeals likewise rejected petitioners' argument that Eisentrageris distinguishable on the ground that the United States exercises de factocontrol or territorial jurisdiction over Guantanamo Bay. Pet. App. 14a-17a.The court "disagree[d] with the detainees that the Eisentrager opinioninterchanged 'territorial jurisdiction' with 'sovereignty,' without attachingany particular significance to either term." Id. at 16a. Furthermore,the court explained, the United States' Lease Agreement with Cuba explicitly"shows that Cuba-not the United States-has sovereignty over Guantanamo."Id. at 15a. For that reason alone, the court continued, Guantanamo Bay isunlike "the geographic area of the States" and "insular possessions"over which the United States does exercise sovereignty. Id. at 16a.

    The court of appeals also concluded that petitioners could not avoidEisentrager by asserting non-habeas claims under the ATS or APA. As thecourt observed, "[t]he holding in Eisentrager-that 'the privilege oflitigation' does not extend to aliens in military custody who have no presencein 'any territory over which the United States is sovereign, (339 U.S. at777-778)- dooms these additional causes of action, even if they deal onlywith conditions of confinement and do not sound in habeas." Pet. App.17a-18a. Moreover, the court continued, "[n]othing in Eisentrager turnedon the particular jurisdictional language of any statute; everything turnedon the circumstances of those seeking relief, on the authority under whichthey were held, and on the consequences of opening the courts to them."Id. at 18a. "With respect to the detainees [at Guantanamo]," thecourt held, "those circumstances, that authority, and those consequencesdiffer in no material respect from Eisentrager." Ibid.

    b.      Judge Randolph concurred separately to address additional "groundsfor rejecting the detainees' non-habeas claims" under the ATS and theAPA. Pet. App. 19a-29a. As he stated, however, it was "unnecessary"for the court to decide those additional grounds for rejecting petitioners'claims "because Eisentrager disposes of the cases." Id. at 26a.Judges Garland and Williams did not take issue with the reasoning of JudgeRandolph's concurrence, but declined to join the concurrence because they"believe[d] the issues addressed need not be reached." Id. at19a n.*.

    5.       Petitioners sought rehearing en banc. The court of appeals deniedrehearing with no member of the court indicating dissent from the denialof rehearing. Pet. App. 30a-31a.


ARGUMENT

    More than 50 years ago, in Johnson v. Eisentrager, 339 U.S. 763 (1950),this Court held that aliens captured and detained abroad lack "capacityand standing to invoke the process of federal courts." Id. at 790.Both the court of appeals and the district court below correctly concludedthat this Court's decision in Eisentrager forecloses petitioners' effortsto invoke the jurisdiction of United States courts to challenge the legalityof the military's detention of aliens held abroad at Guantanamo. The courtof appeals' unanimous decision does not conflict with any other decisionof this Court or of any other court of appeals. The petitions for certiorariaccordingly should be denied.

    1.       In Johnson v. Eisentrager, supra, this Court declined to exercisejurisdiction over a habeas petition filed by German nationals who had beenseized by the United States armed forces in China after the German surrenderin World War II, tried by military commission, and subsequently imprisonedin a United States military prison in Landsberg, Germany. See 339 U.S. at765-767. The Court held that the prisoners lacked "access to our courts"(id. at 777) to challenge their detention because they were aliens seizedand held outside the sovereign territory of the United States.

     The Eisentrager Court emphasized that aliens are accorded rights underthe Constitution and the laws of the United States only as a consequenceof their presence within the United States. As the Court put it, "inextending constitutional protections beyond the citizenry, the Court hasbeen at pains to point out that it was the alien's presence within its territorialjurisdiction that gave the Judiciary power to act." 339 U.S. at 771.The Eisentrager Court held that the "privilege of litigation"was unavailable because "these prisoners at no relevant time were withinany territory over which the United States is sovereign, and the scenesof their offense, their capture, their trial and their punishment were allbeyond the territorial jurisdiction of any court of the United States."Id. at 777-778. The Court further held that the prisoners could not invokethe writ of habeas to vindicate the Fifth Amendment, because, as aliensabroad, they had no Fifth Amendment rights. See id. at 781-783.

     The Eisentrager Court underscored the fundamental nature of its jurisdictionalruling. The Court specifically framed the jurisdictional question beforeit as "one of jurisdiction of civil courts." 339 U.S. at 765.Moreover, in resolving that issue, it referred in broad terms to: the Judiciary's"power to act" vis-a-vis military authorities with respect toaliens held abroad, id. at 771; the standing of such individuals "tomaintain any action in the courts of the United States," id. at 776;the "standing [of such individuals] to demand access to our courts,"id. at 777; and the "capacity and standing to invoke the process offederal courts," id. at 790. Similarly, the Court spoke of "theprivilege of litigation" in United States courts, and discussed itsconcerns about the use of "litigation [as a] weapon" by aliensheld by military authorities overseas. Id. at 777-779.

     The Eisentrager Court also stressed that judicial review of the claimsof aliens seized overseas by the military in a time of war would interferewith the President's authority as Commander in Chief, which "has beendeemed, throughout our history, as essential to war-time security."339 U.S. at 774. As the Court explained, "[i]t would be difficult todevise more effective fettering of a field commander than to allow the veryenemies he is ordered to reduce to submission to call him to account inhis own civil courts and divert his efforts and attention from the militaryoffensive abroad to the legal defensive at home." Id. at 779. "Noris it unlikely," the Court continued, "that the result of suchenemy litigiousness would be a conflict between judicial and military opinionhighly comforting to enemies of the United States." Ibid.

    The court of appeals correctly applied Eisentrager to the claims filedon behalf of the detainees in these cases and held that it lacked jurisdiction.Pet. App. 8a-16a. Indeed, the central underpinnings of this Court's holdingin Eisentrager are equally present here. As every court to consider theissue has concluded (see pp. 24-26, infra), the Guan-tanamo detainees arein all material respects indistinguishable from the prisoners in Eisentrager.First, the Guantanamo detainees, just like the prisoners in Eisentrager,are aliens with no connection to the United States. Second, the Guantanamodetainees, just like the prisoners in Eisentrager, were taken into the custodyof the United States military overseas and are being held outside the sovereignterritory of the United States. Accordingly, as the court of appeals unanimouslyheld, Eisentrager is controlling here.

    2.       The court of appeals and the district court below carefully consideredand correctly rejected petitioners' various attempts to circumvent the clearimport of Eisentrager. Pet. App. 7a-17a (court of appeals); id. at 49a-63a(district court).

     a.      Petitioners argue (03-334 Pet. 10, 18-19; 03-343 Pet. 18-19) thatEisentrager is inapplicable on the ground that the detainees in this caseare not "enemy" aliens. As the court of appeals explained, thatis incorrect. Pet. App. 6a-13a; see id. at 51a-55a. Although the EisentragerCourt referred to the prisoners as "enemy aliens," its holdingwas not dependent on the aliens' status as enemies, but rather on the aliens'lack of presence inside the sovereign territory of the United States. Id.at 11a. The Eisentrager Court emphasized that "the privilege of litigationhas been extended to aliens, whether friendly or enemy, only because permittingtheir presence in the country implied protection." 339 U.S. at 777-778(emphasis added). The dissenters in Eisentrager likewise appreciated thatthe Court's decision "inescapably" applied to "any alienwho is subject to our occupation government abroad, even if he is neitherenemy nor belligerent and even after peace is officially declared."Id. at 796 (Black, J., dissenting).

     Moreover, this Court has repeatedly cited Eisentrager as a seminal decisiondefining the application of the Constitution to all aliens abroad, not simplyenemy aliens. See, e.g., DeMore v. Kim, 123 S. Ct. 1708, 1730 (2003); Zadvydasv. Davis, 533 U.S. 678, 693 (2001); United States v. Verdugo-Urquidez, 494U.S. 259, 269 (1990). As the court of appeals noted (Pet. App. 11a), inVerdugo-Urquidez, the Court-citing Eisentrager- explained that "wehave rejected the claim that aliens are entitled to Fifth Amendment rightsoutside the sovereign territory of the United States." 494 U.S. at269. So too, in Zadvydas, the Court-again pointing to Eisentrager-statedthat "[i]t is well established that certain constitutional protectionsavailable to persons inside the United States are unavailable to aliensoutside of our geographic borders." Zadvydas, 533 U.S. at 693. Morerecently, in Demore, which was decided a month after the court of appeals'decision in these cases, the Court again cited Eisentrager for the propositionthat aliens present in the United States enjoy rights not available to aliensoutside the Nation's borders. 123 S. Ct. at 1730.

     In any event, the Guantanamo detainees qualify as "enemy aliens"for purposes of Eisentrager because they were seized in the course of activeand ongoing hostilities against United States and coalition forces. Cf.United States v. Terry, 36 C.M.R. 756, 761 (A.B.R. 1965) ("The term'enemy' applies to any forces engaged in combat against our own forces."),aff'd, 36 C.M.R. 348 (C.M.A. 1966). Nothing in Eisentrager suggests thatan "enemy alien" is limited to a national of a country that hasformally declared war on the United States. Although Eisentrager noted thatunder international law all nationals of a belligerent nation become "enemies"of the other upon a declaration of war, see 339 U.S. at 769-773 & n.2,the Court stressed that it did not need to rely on that "fiction"because the detainees were "actual enemies, active in the hostile serviceof an enemy power." Id. at 778. The same is true of the Guantanamodetainees here.

     The "enemy" status of aliens captured and detained during waris a quintessential political question on which the courts respect the actionsof the political branches. See, e.g., The Three Friends, 166 U.S. 1, 63(1897); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862). The President,in his capacity as Commander in Chief, has conclusively determined thatthe Guantanamo detainees-both al Qaeda and Taliban-are not entitled to prisoner-of-warstatus under the Geneva Convention. See Office of the White House PressSecretary, Fact Sheet, Status of Detainees at Guantanamo, supra; UnitedStates v. Lindh, 212 F. Supp. 2d 541, 554-555 (E.D. Va. 2002). Any effortto look beyond such an executive determination at the jurisdictional thresholdwould conflict with the rationale of Eisentrager. As the Eisentrager Courtemphasized, exercising jurisdiction over the claims of aliens held abroadduring wartime would directly, and perhaps gravely, interfere with the Executive'sconduct of the war and divert the attention of the military from ongoinghostilities abroad to courtrooms at home. See 339 U.S. at 778-779. So too,allowing detainees to invoke the courts to litigate their "enemy"status to determine whether jurisdiction exists under Eisentrager wouldinvite the same dangers that the Court wisely avoided in Eisentrager. Asthe court below aptly observed, "the Court in Eisentrager did not decideto avoid all the [separation-of-powers] problems exercising jurisdictionwould have caused, only to confront the same problems in determining whetherjurisdiction exists in the first place." Pet. App. 13a.

      b. Nor, as the courts below correctly held, is there any basis for distinguishingEisentrager on the ground that Guantanamo is under the "de facto control"of the United States. See Pet. App. 14a-17a; id. at 55a-63a. Eisentrageritself makes clear that its jurisdictional rule is based on sovereignty,and not on malleable concepts like de facto control. In particular, in explainingwhy "the privilege of litigation" did not extend to the aliensin Eisentrager, the Court stated that the "prisoners at no relevanttime were within any territory over which the United States is sovereign."339 U.S. at 777-778 (emphasis added).

     Like the prisoners in Eisentrager, the Guantanamo detainees are beingheld outside the sovereign territory of the United States. The United Statesuses and occupies the Guantanamo Naval Base under a lease with the Republicof Cuba. Although Cuba "consents" to permit the United Statesto "exercise complete jurisdiction and control" of the base, theLease Agreement between Cuba and the United States provides that Cuba retains"ultimate sovereignty" over the naval base. Lease Agreement, art.III, T.S. No. 418 (6 Bevans at 1113), quoted pp. 3-4, supra.4 As this Courthas explained, the "determination of sovereignty over an area is forthe legislative and executive departments," and not a question on whicha court may second-guess the political branches. Vermilya-Brown Co. v. Connell,335 U.S. 377, 380 (1948).5

     Moreover, this Court has already recognized that leased United Statesmilitary installations abroad lie outside the sovereign territory of theUnited States. In United States v. Spelar, 338 U.S. 217, 219 (1949), theCourt held that a United States military base leased in Newfoundland was"subject to the sovereignty of another nation," not "to thesovereignty of the United States," and therefore fell within the "foreigncountry" exception to the Federal Tort Claims Act. The base in Spelarwas governed by "the same executive agreement and leases" as theUnited States military base in Bermuda. Id. at 218. In Vermilya-Brown, thisCourt recognized that the United States' rights over the base in Guantanamoare "substantially the same" as its rights over the base in Bermuda.335 U.S. at 383.6 The Guantanamo Naval Base, therefore, clearly lies outsidethe sovereign territory of the United States-and, indeed, as noted above,that much is "undisputed" by petitioners. Pet. App. 55a.7

     In addition, if, as petitioners contend, de facto control is sufficientto establish sovereignty for purposes of Eisentrager, then the prisonersin Eisentrager themselves would have been entitled to judicial review oftheir habeas claims. The Landsberg prison in Germany was undeniably underthe control of the United States when Eisentrager was held there. See 339U.S. at 766, 768 .n.1 (prisoners were under custody of "American Armyofficer" who was the "Commandant of Landsberg prison" andnoting similar cases of "aliens confined by American military authoritiesabroad" (emphasis added). As Justice Black stated in his dissent inEisentrager, "[w]e control that part of Germany we occupy." Id.at 797. The United States similarly controls Guantanamo, but, as the majorityheld in Eisentrager, in the absence of sovereignty, such control does notentitle the aliens held at Guantanamo to the privilege of litigating inUnited States courts.

      c. Petitioners attempt (03-334 Pet. 14; 03-343 Pet. 16-17) to distinguishEisentrager on the ground that the detainees in that case had been convictedby a military commission. But, as the district court observed, "[w]hileit is true that the petitioners in Eisentrager had already been convictedby a military commission, the Eisentrager Court did not base its decisionon that distinction. Rather, Eisentrager broadly applies to prevent aliensdetained outside the sovereign territory of the United States from invokinga petition for a writ of habeas corpus." Pet. App. 54a (citation omitted).Moreover, under petitioners' reading of Eisentrager, aliens captured andheld abroad would have access to the United States courts in the earlieststages of their detention, but not after hostilities had ended and the detaineeshad been convicted of military charges years later. Nothing in Eisentragersupports that counterintuitive result. Accordingly, the fact that the Presidenthas not determined how each of the Guantanamo detainees should ultimatelybe treated, including whether they should be charged pursuant to his militaryorder or returned to their countries of origin, provides no reason to avoidEisentrager.

     Indeed, the timing of this litigation if anything only exacerbates theconcerns that this Court stressed in Eisentrager about judicial interferencewith military affairs committed to the political branches. Whereas the habeasaction in Eisentrager did not reach the Supreme Court until years afterthe hostilities of World War II had ceased, this litigation challenges thePresident's military detentions while American soldiers and their alliesare still engaged in armed conflict overseas against an unprincipled, unconventional,and savage foe. See Associated Press, Suspected Taliban Fighters Kill Americanin Gun Battle, Wash. Post, Oct. 1, 2003, at A12 ("Suspected Talibanfighters killed an American soldier and wounded two others in a gun battleMonday that underscored the stiffening resistance of insurgents nearly twoyears after a U.S.-led coalition ousted the Taliban from power.").The potential for interference with the core war powers of the Presidentin this litigation is therefore even more acute in this case than it wasin Eisentrager. Indeed, even the dissenters in Eisentrager, the only Justiceswho thought that there was jurisdiction in that case and therefore had theneed to consider the political question issue, acknowledged that courtsshould not interfere "while hostilities are in progress." 339U.S. at 796 (Black, J., dissenting).8

    3.       Contrary to petitioners' contentions (03-334 Pet. 24-28; 03-343 Pet.24-25, 27-28), the court of appeals' unanimous decision in these cases doesnot conflict with any decision of this Court or of any other court of appeals.

      a. Petitioners argue (03-334 Pet. 25 & n.17) that courts, relyingon the so-called "Insular Cases," have extended certain "fundamentalconstitutional rights to non-resident aliens in the Canal Zone, the TrustTerritories, and the American Sector in post-war Berlin." By analogy,petitioners argue (03-334 Pet. 26) that these same rights should inhereto aliens held at Guantanamo Bay where the United States maintains "exclusivejurisdiction and control." That analogy is fundamentally flawed. Tobegin with, Guantanamo is not a territory, or even an unincorporated territorylike Guam or Puerto Rico. Rather, it is a military base on foreign soil;as explained above, under the United States' lease agreement with Cuba,Cuba retains sovereignty over Guantanamo. For that reason alone, the decisionbelow in no way conflicts with any of the Insular Cases or their progeny.

     More fundamentally, the application of Eisentrager turns on the existence,or not, of United States sovereignty over an area, and not on United States'jurisdiction or control over an area. The Insular Cases are not inconsistentwith that rule. To the contrary, as this Court explained in Verdugo-Urquidez,they simply specify "that not every constitutional provision appliesto governmental activity even where the United States has sovereign power."494 U.S. at 268 (emphasis added). The Insular Cases therefore do not helpthe detainees in this case, who are being held in a land over which theUnited States lacks sovereignty.9

      b. Petitioners argue (03-334 Pet. 26-27) that the decision below conflictswith Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977), which held that dueprocess principles may apply in the Trust Territory of Micronesia. See id.at 619 & n.71. The court below, however, correctly distinguished Ralpho.Pet. App. 16a-17a. That case did not involve the detention of aliens abroad,but instead concerned a court's jurisdiction to review a claim to a hearingunder the Micronesian Claims Act. See 569 F.2d at 611-612. Moreover, thecourt's decision in Ralpho that Micronesian residents enjoyed due processrights was based on its conclusion that the Trust Territory was equivalentto other American territories, which are accorded due process rights.10See id. at 619; see also Gale v. Andrus, 643 F.2d 826, 832-833 (D.C. Cir.1980). The military base at Guantanamo is not, and is not remotely like,an American territory. For those reasons, the court correctly distinguishedRalpho, but even if there were any tension between the District of ColumbiaCircuit's decision in Ralpho and its decision below, any such intra-circuitconflict would not merit this Court's review.11

      c. Petitioners claim (03-334 Pet. 28; 03-343 Pet. 24) that Haitian CentersCouncil, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992), vacated as moot subnom. Sale v. Haitian Centers Council, Inc., 509 U.S. 918 (1993), supportsthe notion that the United States' effective control over Guantanamo Bayis sufficient for them to invoke habeas relief in the United States courts.As the court of appeals explained, however, the Second Circuit's decisionin McNary "has no precedential value because the Supreme Court vacatedit." Pet. App. 15a. Furthermore, as the court of appeals also explained,the currency of the Second Circuit's vacated decision in McNary is furtherdiminished by the fact that the decision is "at odds with the SupremeCourt's reasoning not only in Vermilya-Brown, but also in Spelar,"which reaffirm that "control is surely not the test" for determiningwhen constitutional provisions may apply extraterritorially. Id. at 15a-16a.12

      d. Contrary to petitioners' contention (03-334 Pet. 24; 03-343 Pet. 28),the court of appeals' decision also does not conflict with Asahi Metal IndustryCo. v. Superior Court, 480 U.S. 102 (1987). Asahi concerns the circumstancesunder which a foreign defendant- seeking to avoid jurisdiction-may be suedin a state court. See id. at 109-110. This litigation, however, involvesthe different question whether an alien held abroad may "demand accessto our courts." Eisentrager, 339 U.S. at 777.13

    4.       Far from conflicting with any other decisions, the court of appeals'decision in this case is consistent with the decisions of the other courtsthat have considered habeas petitions filed on behalf of Guantanamo detainees.In Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036 (C.D. Cal.), aff'din part and vacated in part, 310 F.3d 1153 (9th Cir. 2002), cert. denied,123 S. Ct. 2073 (2003), a coalition of clergy, lawyers, and professors fileda habeas petition on behalf of all the Guantanamo detainees, including thedetainees in these cases. The district court held that the coalition lackednext-friend standing to maintain the action because it had no prior relationshipwhatsoever with the detainees. 189 F. Supp. 2d at 1040-1044. The court furtherheld, however, that, even if the coalition had possessed next-friend standing,United States courts would lack jurisdiction to entertain the habeas petitionunder this Court's decision in Eisentrager. Id. at 1046-1050. Indeed, asthe district court explained, the Guantanamo detainees are similar "[i]nall key respects" to the prisoners in Eisentrager. Id. at 1048.

     On appeal, the Ninth Circuit affirmed the district court's decision thatthe coalition lacked next-friend standing to file a habeas petition on behalfof the Guantanamo detainees. 310 F.3d 1153, 1157. In addition, the NinthCircuit noted that "[t]here is no question that the holding in [Eisentrager]represents a formidable obstacle to the rights of the detainees at [Guantanamo]to the writ of habeas corpus," and that Eisentrager "well matchesthe extraordinary circumstances" of the Guantanamo detentions. Id.at 1164 n.4. However, the Ninth Circuit vacated that portion of the districtcourt's decision addressing Eisentrager on the ground that it was not necessaryfor the court to reach that issue in light of the fatal absence of next-friendstanding. The plaintiffs in Coalition of Clergy petitioned for certiorari,challenging both the court of appeals' holding that next-friend standingwas lacking and the district court's alternative holding that jurisdictionwas lacking under Eisentrager. See 02-1155 Pet. i. This Court denied certiorari.123 S. Ct. 2073 (2003).

     In Gherebi v. Bush, 262 F. Supp. 2d 1064, 1066 (C.D. Cal. 2003), appealpending, No. 03-55785 (9th Cir. argued Aug. 11, 2003), another habeas petitionwas filed on behalf of a Guantanamo detainee, this time by an individualclaiming to be the brother of a Guantanamo detainee. The district court-thesame court that decided Coalition of Clergy-held that next-friend standingwas present, but that Eisentrager "compels dismissal" of the petitionfor habeas relief. Id. at 1066-1067, 1068-1071.14

    5.       Petitioners object (03-334 Pet. 9, 28-29; 03-343 Pet. 9-11) to thecourt of appeals' decision on the ground that it leaves the detainees withoutany access to United States courts. In many respects, petitioners' objectionsecho those of the dissenters in Eisentrager, who clearly appreciated "[t]hebroad reach of [the Court's] opinion." 339 U.S. at 792 (Black, J.,dissenting). In any event, Eisentrager does not establish that aliens detainedby the military abroad are without any rights or process, but rather thatthe scope of those rights or procedures are to be determined by the Executiveand the military, and not the courts. As the Court stated in Eisentrager,"[w]e are not holding that these prisoners have no right which themilitary authorities are bound to respect," but rather that the "responsibilityfor observance and enforcement of th[e] rights [asserted on behalf of theprisoners] is upon political and military authorities" in seeking tofulfill the United States' international commitments. Id. at 789 n.14.15Thus, far from establishing the sort of dangerous precedent characterizedby petitioners, Eisentrager reflects core separation-of-powers principles,avoids the truly dangerous precedent of judicial second-guessing of quintessentiallymilitary decisions, and ensures that "enemy litigiousness" doesnot jeopardize the war effort or "bring aid and comfort to the enemy."Id. at 779.

     In a similar vein, petitioners argue (03-343 Pet. 25-26) that, underEisentrager, the Guantanamo detainees lack of access to United States courtswould violate the United States' international obligations. That is incorrect.But more to the point, as this Court recognized in Eisentrager, our Constitutionreserves that judgment to the political branches, which, unlike the courts,may be held politically accountable for that judgment. See 339 U.S. at 789n.14. In addition, the federal habeas statute has allowed treaty-based internationallaw claims since at least 1867, and the prisoners in Eisentrager themselvesraised claims under the Geneva Convention. But in Eisentrager, this Courtheld that the United States courts lacked jurisdiction over such habeasclaims. Nor is there any reason to conclude that the same courts that areclosed under Eisentrager to claims based on an alleged violation of theUnited States Constitution nonetheless remain open to claims based on allegedviolations of international law.

     In particular, petitioners' reliance (03-343 Pet. 26-27) on the InternationalCovenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, is misplaced.The ICCPR-a multilateral agreement addressing basic civil and politicalrights-could not possibly be read to override Eisentrager. As Judge Randolphexplained in his concurring opinion below, the ICCPR is a non-self- executingtreaty that does not create any judicially enforceable rights in this countryat all. Pet. App. 22a; see also, e.g., Flores v. Southern Peru Copper Corp.,No. 02-9008, 2003 WL 22038598, at *18 n.35 (2d Cir. Sept. 2, 2003). Furthermore,by its terms, the ICCPR is inapplicable to conduct by the United Statesoutside its sovereign territory. Article 2, paragraph 1 of the ICCPR statesthat "[e]ach State Party to the present Covenant undertakes to respectand to ensure to all individuals within its territory and subject to itsjurisdiction the rights recognized in the present Covenant" (emphasisadded). That territorial limitation is reinforced by the canon of constructionthat treaties "normally do not have extraterritorial application unlesssuch an intent is clearly manifested." Sale v. Haitian Ctrs. Council,Inc., 509 U.S. 155, 188 (1993).

    6.       There is no reason to hold these petitions pending the dispositionof the petition for certiorari in Sosa v. Alvarez- Machain, No. 03-339 (filedSept. 2, 2003). As discussed in the United States' brief in support of thepetition in No. 03-339, the threshold question presented in Sosa is whetherthe Alien Tort Statute (ATS), 28 U.S.C. 1350, creates a private cause ofaction for aliens for torts committed in violation of the law of nationsor treaties of the United States or, instead, is simply a jurisdiction-grantingprovision. In his concurrence in this case, Judge Randolph expounded onthe position taken by Judge Bork in Tel-Oren v. Libyan Arab Republic, 726F.2d 774, 801 (D.C. Cir. 1984) (concurring opinion), cert. denied, 470 U.S.1003 (1985), that the ATS "does not create a cause of action."Pet. App. 20a; see id. at 20a-26a. But, as Judge Randolph further observed,it was "unnecessary" for the panel to reach or resolve that ATSissue here because, inter alia, "Eisentrager disposes of the[se] cases."Id. at 26; see id. at 19a n.*; see also U.S. Br. at 14-15, Sosa v. Alvarez-Machain,supra (No. 03-339) (discussing Al Odah). Accordingly, although Judge Randolph'sconcurrence sheds added light on the District of Columbia Circuit's interpretationon the ATS, the court of appeals' judgment below does not implicate theimportant ATS issue presented by Sosa.

CONCLUSION

The petitions for a writ of certiorari should be denied.

 

Respectfully submitted.

 

THEODORE B. OLSON

THEODORE B. OLSON
Solicitor General
PETER D. KEISLER
Assistant Attorney General
PAUL D. CLEMENT
Deputy Solicitor General
GREGORY G. GARRE
DAVID B. SALMONS
Assistants to the Solicitor General
DOUGLAS N. LETTER
ROBERT M. LOEB
CATHERINE Y. HANCOCK
Attorneys

OCTOBER 2003

1 All citations to the Petition Appendix refer to the appendix accompanyingthe petition in No. 03-334.

2 See Lease of Lands for Coaling and Naval Stations, Feb. 16- 23, 1903,U.S.-Cuba, art. III, T.S. No. 418 (Lease Agreement); Treaty on Relationswith Cuba, May 29, 1934, U.S.-Cuba, art. III, 48 Stat. 1682, 1683, T.S.No. 866 (extending lease "[u]ntil the two contracting parties agreeto the modification or abrogation of the stipulations").

3 The court of appeals rejected the government's argument that "theGuantanamo detainees are within the category of 'enemy aliens,' at leastas Eisentrager used the term." Pet. App. 10a. But at the same time,the court emphasized that "the Guantanamo detainees have much in commonwith the German prisoners in Eisentrager." Ibid. As the court explained,the Guantanamo detainees "too are aliens, they too were captured duringmilitary operations, they were in a foreign country when captured, theyare now abroad, they are in the custody of the American military, and theyhave never had any presence in the United States." Ibid.

4 The Lease Agreement was executed in both English and Spanish, and bothauthoritative texts confirm Cuba's ongoing sovereignty over Guantanamo Bay.The Spanish phrase in Article III for "ultimate sovereignty" is"soberania definitiva." The word "definitiva" beliesany assertion that "ultimate" as used in Article III means only"eventual." Instead, it is defined in Diccionario Salamanca 472(1996) as "que no admite cambios," or, in English, "not subjectto change." Similarly, "ultimate" itself is more naturallydefined in this context as "basic, fundamental, original, primitive."Webster's Third New International Dictionary 2479 (1993). As this Courtexplained in United States v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833),"[i]f the English and the Spanish parts [of a treaty] can, withoutviolence, be made to agree, that construction which establishes this conformityought to prevail." Thus, the terms "definitiva" and "ultimate"are equally understood to affirm Cuba's sovereignty over the leased territory.

5 The Executive Branch opinions cited by petitioners (03-334 Pet. 20)do not in any way undermine that conclusion. Indeed, those opinions-whichaddress issues far afield from the question presented here-specificallyrecognize that the United States' lease agreement with Cuba reserves toCuba the "ultimate sovereignty" over Guantanamo, 35 Op. Att'yGen. 536, 537 (1929) (quoting Lease Agreement) (addressing whether Guantanamois a "possession" of the United States within the meaning of thetariff law), and that, under that agreement, Guantanamo thus lies "outsidethe territorial United States," 6 Op. Office of Legal Counsel 236,238 (1982) (emphasis added) (addressing whether the installation of slotmachines at Guantanamo is barred by the Anti-Slot Machine Act).

6 Other lower courts that have considered the status of Guantanamo havelikewise concluded that it lies outside the United States' sovereign territory.See also Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412, 1425 (11th Cir.)(rejecting argument that control and jurisdiction of Guantanamo "isequivalent to sovereignty"), cert. denied, 515 U.S. 1142 (1995); Birdv. United States, 923 F. Supp. 338, 343 (D. Conn. 1996) ("sovereigntyover the Guantanamo Bay does not rest with the United States").

7 Petitioners cite United States v. Lee, 906 F.2d 117 (4th Cir. 1990)(per curiam), for the proposition that crimes committed at Guantanamo maybe prosecuted in the United States courts. But petitioners overlook thatthe Lee court exercised jurisdiction over the indictment in that case pursuantto provisions that extend the criminal law extraterritorially to "crimescommitted outside the jursdiction of a state or district court." 906F.2d at 117 n.1. That certain laws may apply extraterritorially to Guantanamoonly reinforces the conclusion that the base lies outside the sovereignterritory of the United States. See Pet. App. 14a-15a.

8 The extraordinary circumstances in which this litigation arises andthe particular relief that petitioners seek implicate core political questionsthat the Constitution leaves to the President as Commander in Chief. Petitionersask the courts to opine on the legality of the President's ongoing militaryoperations and to release individuals who were captured during hostilitiesand who the military has determined should be detained. Particularly wherehostilities remain ongoing, the courts have no jurisdiction, and no judicially-manageablestandards, to evaluate or second-guess the conduct of the President andthe military. These questions are constitutionally committed to the ExecutiveBranch. That is particularly true where, as here, the President is actingwith the full backing of Congress. See Authorization for Use of MilitaryForce, Pub. L. No. 107-40, 115 Stat. 224; Youngstown Sheet & Tube Co.v. Sawyer, 343 U.S. 579, 635-638 (1952) (Jackson, J., concurring); see alsoAmerican Ins. Ass'n v. Garamendi, 123 S. Ct. 2374, 2386-2387 (2003); Dames& Moore v. Regan, 453 U.S. 654, 668- 669 (1981). Accordingly, althoughthe courts below did not need to reach the issue because they properly concludedthat Eisentrager itself requires dismissal, the political question doctrineprovides an additional, and independently sufficient, basis for dismissingthese actions.

9 Petitioners likewise suggest (03-334 Pet. 16) that the decision belowconflicts with Reid v. Covert, 354 U.S. 1 (1957). As this Court itself underscoredin Verdugo-Urquidez, however, Reid only "decided that United Statescitizens stationed abroad could invoke the protections of the Fifth andSixth Amendments." 494 U.S. at 270. Thus, as was true for the aliendefendant in Verdugo-Urquidez, the aliens on whose behalf these actionswere brought "can derive no comfort from the Reid holding." Ibid.

10 Guantanamo is a special-purpose enclave within a foreign country,which the United States occupies pursuant to a lease with Cuba, which inturn retains sovereignty over Guantanamo. By contrast, no other sovereignexisted at the time of the appointment of the United States as administratorof the Micronesia Trust Territory. See Trusteeship Agreement for the FormerJapanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665(preamble). Likewise, the United States' operation of the Guantanamo basedoes not share any of the civilian governmental attributes of its specialrole with respect to the Trust Territory in Micronesia, and responsibilityto "nurture the Trust Territory toward self-government." Andrus,643 F.2d at 830; see 48 U.S.C. 1681(a). Furthermore, unlike Guantanamo,Congress has exercised Article IV powers with respect to Micronesia. See,e.g., Proclamation 5564, 51 Fed. Reg. 40,399 (1986) (establishing the NorthernMariana Islands as United States territory and through Free Associationcompacts with the remaining portions of the former Trust Territories); Actof Mar. 24, 1976, Pub. L. No. 94-241, 90 Stat. 263 (covenant to establisha Commonwealth of the Northern Mariana Islands in political union with theUnited States); Act of Nov. 8, 1977, Pub. L. No. 95-157, 91 Stat. 1265 (establishinga United States District Court in the Northern Mariana Islands).

11 Petitioners' reliance (03-334 Pet. 25-26; 03-343 Pet. 25) on the PanamaCanal Zone cases is similarly misplaced. The Fifth Circuit's holdings extendingsome constitutional rights to the Panama Canal Zone are based on that court'sdetermination that the Canal Zone was an unincorporated territory and onits application of the Insular Cases. See United States v. Husband R. (Roach),453 F.2d 1054, 1057 (5th Cir. 1971); Government of the Canal Zone v. Scott,502 F.2d 566, 568, 570 (5th Cir. 1974); Government of the Canal Zone v.Yanez P. (Pinto), 590 F.2d 1344, 1351 (5th Cir. 1979). Congress also possessedArticle IV powers with respect to the Canal Zone. See Husband R., 453 F.2dat 1058-1059. Moreover, the Fifth Circuit's exercise of jurisdiction inthose cases reflected the fact that the United States had established aUnited States federal district court for the Canal Zone, with appellatereview in the Fifth Circuit. See Panama Canal Act, ch. 390, § 8, 37Stat. 560, 565 (repealed 1979). Obviously there is no analogous districtcourt with jurisdiction over Guantanamo. The Canal Zone cases are thereforealso inapplicable.

12 Petitioners' reliance (03-334 Pet. 28-29; 03-343 Pet. 25) on UnitedStates v. Tiede, 86 F.R.D. 227 (U.S. Ct. of Berlin 1979), is also misplaced.The Tiede court was an occupation court established by the United StatesAmbassador to Germany, not an Article III court. See U.S. High CommissionerLaw No. 46, as amended. Its erroneous holding that aliens abroad enjoy fullconstitutional protections is plainly inconsistent with later controllingprecedent. See, e.g., Zadvydas, 533 U.S. at 693.

13 Petitioners' reliance (03-343 Pet. 18-19) on Shaughnessy v. UnitedStates ex rel. Mezei, 345 U.S. 206 (1953), is also misplaced. That caseconcerned an alien who was detained at Ellis Island in New York. Id. at207. The Court therefore had no occasion to consider whether aliens heldabroad are entitled to the privilege of litigating in United States courts.

14 In Gherebi, the United States has also argued that the district courtlacked jurisdiction to entertain the petition under the terms of the habeasstatute because no custodian responsible for the custody of the Guantanamodetainees is present within the Central District of California. See 28 U.S.C.2241(a); Schlanger v. Seamans, 401 U.S. 487, 491 (1971) (Under Section 2241,"absence of [the] custodian is fatal to * * * jurisdiction").

15 That political and diplomatic dynamic is fully available and, indeed,already active in the case of the Guantanamo detainees, just as it has beenavailable for aliens detained by the military in connection with prior armedconflicts. See, e.g., Office of the White House Press Secretary, Fact Sheet,Statement on British Detainees 1 (July 18, 2003) (discussing meeting betweenthe President and the Prime Minister Blair concerning U.K. nationals detainedat Guantanamo) <www.whitehouse.gov/news/releases /2003/07/20030717-9.html>.In addition, in the past year and a half, more than 60 detainees have beenreleased from Guantanamo.

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