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.

Gherebi v. Bush (9th Cir. 2003), slip op. at 8-9

18 December 2003 was a red-letter day for the rule of law in the United States, and, consequently, a day on which the Bush administration would have preferred to stay in bed. While the Second Circuit tackled the issue of U.S. citizens detained in perpetuity as "enemy combatants," the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that United States courts have jurisdiction to hear petitions for habeas corpus from the persons imprisoned on the U.S. naval base in Guantánamo Bay, Cuba.

The Guantánamo Camp

Since the U.S. began its war against Afghanistan in 2001, several hundred people of various nationalities have been incarcerated as "unlawful combatants" in Guantánamo Bay. There, they have been kept in complete isolation, with bright lights shining in their eyes twenty-four hours a day, in electrified cages. If they so much as speak to a fellow inmate, they can be transferred to "The Hole," a cell designed so that prisoners are able neither to stand up straight nor to sit down. During their stay in the Hole, they receive no food — only water and vitamin shots. Needless to say, the combination of isolation, severe long-term sleep deprivation, constant fear of death, and utter uncertainty as to their fate has led many inmates to attempt suicide. Despite serious questions as to whether many inmates were involved with the Taliban or Al Qaeda at all (not to mention statements by the officers in charge of the camp to that effect), no inmate at the Guantánamo camp has had access to counsel, and none have had recourse to any court for determination of their legal status as required by the Third Geneva Convention1.

"Unlawful Combatants"

Indeed, the United States government's official position is that it has no obligation to follow the Geneva Conventions of 1949 at all; rather, the government has stated that it may apply “the principles” of the Third Geneva Convention “to the extent appropriate and consistent with military necessity.” Office of the Press Secretary, Fact Sheet, Status of Detainees at Guantanamo, Feb. 7, 2002, at 1, at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html. The government has declared that it has no obligation to abide by the Geneva Conventions because the prisoners at Guantánamo are "unlawful combatants." Like "enemy combatant," "unlawful combatant" is a term with no meaning in U.S. or international humanitarian law (the law of war). The Geneva Conventions recognise two categories of persons involved in an armed conflict: combatants, who are entitled to the protections that the Third Geneva Convention affords to prisoners of war, and noncombatants, who are entitled to the protections of the Geneva Convention on the Protection of Civilian Persons in Time of War. There is no option C; either the Guantánamo prisoners are prisoners of war, or they are civilian noncombatants. Either way they are protected by international humanitarian law.

Despite the government's obvious incentive to come up with a legal argument proving that there is such a thing as an "unlawful combatant," they have come up rather empty. In response to a request for "precautionary measures" (similar to a preliminary injunction) lodged with the Interamerican Commission on Human Rights, the U.S. government put forth its best argument in favour of recognising the status of "unlawful combatant." First and foremost, according to the U.S. government, the Guantánamo prisoners are not POWs because

The United States has stated publicly that the detainees are not entitled to POW status because they are unlawful combatants. For example, the United States has said:

Under Article 4 of the Geneva Convention, ... Taliban detainees are not entitled to POW status...The Taliban have not effectively distinguished themselves from the civilian population of Afghanistan. Moreover, they have not conducted their operations in accordance with the laws and customs of war. ... Al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty.

Response of the United States to Request for Precautionary Measures - Detainees in Guantánamo Bay, Cuba, at 30 (quoting Statement by the U.S. Press Secretary, The James S. Brady Briefing Room, 7 February 2002.) Apart from this "because we say so argument," the U.S. government does not have much in the way of authority for the continued existence of the status of "unlawful combatant." In a footnote, the government cites a string of authorities, the most recent of which dates back to 1942 (Ex Parte Quirin, 317 U.S. 1), and the bulk of which are pre-World War I. In fact, the only "authority" the government was able to find that postdates the entry into force of the 1949 Geneva Conventions is a one-line quote from Ingrid Detter's The Law of War. Id., at 11, 11 n.4. Perhaps they should have stuck with "because we say so2."

The Ninth Circuit's decision in Gherebi v. Bush

While the press immediately began reporting, among other things, that the Ninth Circuit had ordered that Guantánamo prisoners be allowed to meet with counsel, the Gherebi decision is much narrower. In essence, the Ninth Circuit decided two things: (1) that the courts of the United States had jurisdiction over the Naval Base at Guantánamo and (2) that the Central District of California had personal jurisdiction over respondents Bush et al.

This case, unlike the 2002 case Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002), was filed by the brother of a man being held in the Guantánamo camp. In that case, the Ninth Circuit did not have occasion to consider the issue of whether U.S. courts had jurisdiction over Guantánamo, because the people who filed the petition in Coalition had no relationship whatsoever with any of the prisoners, and thus had no standing. In this case, Gherebi's brother, acting on Gherebi's behalf, sought

acknowledgment that Gherebi is detained by respondents; that the reason for Gherebi’s detention be stated; that Gherebi be brought physically before the court for a determination of his conditions of detention, confinement, and status, which conditions are contended to be in violation of the Due Process Clause of the Fifth and Fourteenth Amendments and the cruel and unusual punishment clause of the Eighth Amendment, and be ordered to be brought into compliance with those Amendments; that Gherebi be accorded his right under the Sixth Amendment of equal access to counsel; that Gherebi be released; and for any and all appropriate other and further action.

9. Cir. op at 6, n.6. The District Court dismissed Gherebi's petition for lack of jurisdiction, holding that the U.S. Supreme Court's decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), prevented U.S. courts from exercising jurisdiction over enemy combatants captured and held outside of sovereign U.S. territory.

The Ninth Circuit disagreed. In a 2-1 decision, the court held that Johnson was distinguishable. In Johnson the Supreme Court held that U.S. courts had no jurisdiction over two German soldiers who were captured in China, and tried and incarcerated in Landsberg, Germany. Since the Johnson petitioners were at all times outside of the territorial jurisdiction of the United States, and never set foot on sovereign U.S. territory3, the Court held that they had no recourse in U.S. courts. The Ninth Circuit held Johnson distinguishable due to fundamental differences in the nature of the U.S. occupation of Germany and the U.S. occupation of Guantánamo Bay.

The government contended that, under Johnson, U.S. courts could only exercise jurisdiction over territories over which the United States was sovereign. In the Ninth Circuit's view, however, Johnson placed greater emphasis on territorial jurisdiction than on sovereignty, see 9th. Cir. op. at 18, 18 n.11 (noting that "[t]he Court spoke to the issue of the extraterritorial situs of petitioners in eight instances in the opinion; at only two of these points does the term “sovereign” or “sovereignty” appear," [citing 339 U.S. at 768]). However, the court held that the United States exercised both sovereignty and territorial jurisdiction over Guantánamo.

To reach this conclusion, the Ninth Circuit examined the text of the 1903 lease pursuant to which the United States occupies Guantánamo, as well as the conduct of the United States in Guantánamo subsequent to the signing of the lease.

Pursuant to Art. III of the Lease,

While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire [...] for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

(emphasis added) Thus, the Ninth Circuit first had to determine the meaning of the "continuance" of Cuba's "ultimate sovereignty," as well as its relationship to the United States' "complete jurisdiction and control." The court began by determining whether the "ultimate sovereignty" recognised in Art. III was "temporal" or "qualitative" sovereignty, i.e. whether

the Lease (and the 1934 continuing Treaty) vest[ed] sovereignty in Cuba “ultimately” in the sense that Cuba’s sovereignty becomes substantively effective if and when the United States decides to abandon its physical and absolute control of the territory (or to put it differently, is Cuba’s sovereignty residual in a temporal sense); or [did] the Lease (and the continuing Treaty) vest “basic, fundamental” or “maximum” (the alternative qualitative meaning of “ultimate” discussed infra) sovereignty in Cuba at all times, and specifically during the indefinite period in which the United States maintains complete jurisdiction and control over the Base.

9th Cir. op. at 26. Based on the dictionary definitions of ultimate4 and definitivo5 the term with which "ultimate" was translated in the Spanish version of the Lease. While the English term "ultimate" is primarily temporal in nature ("completed, last, final"), the Spanish equivalent "definitivo" tends to be both temporal and qualitative. Following U.S. v. Percheman, 32 U.S. (7 Pet.) 51, 88 (1833), in which the Supreme Court held that “if the English and Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail.” 32 U.S. at 88, the Ninth Circuit held that "because the English word “ultimate” is principally defined in temporal terms, and the Spanish term “definitiva” is susceptible to either temporal or qualitative definitions, or a mixed definition, it is the temporal definition that prevails." 9th Cir. op. at 31 n.16. Thus, under the Lease, Cuba could exercise no sovereignty over Guantánamo until the U.S. abandoned the territory, at which time sovereignty would "ultimately" revert to Cuba.

In addition to the language of the Lease, sovereignty "has emerged, practically, through the concrete actions of a powerful nation intent on enforcing the right to use the territory it occupies without regard to any limitations." 9th Cir. op. at 35. The United States' long history of purposeful noncompliance with the explicit limitations of the Lease showed that the U.S. intended to exercise sovereignty over Guantánamo. Although the Lease specifically limits the permissible use of Guantánamo Bay to a naval base and coaling station, the U.S. has long used the area as a detention facility for asylum seekers, and now for prisoners of war6. Thus, [w]hatever question may have existed about our sovereignty previously, our insistence on our right to use the territory for any and all purposes we desire, and our refusal to recognize the specific limitation on our rights provided in the Lease and continuing Treaty, removes any doubt that our sovereignty over Guantanamo is complete." 9th Cir. op. at 35.

Even clearer than sovereignty, according to the Ninth Circuit, was the fact that the United States exercised territorial jurisdiction over Guantánamo Bay. The Lease and continuing Treaty pursuant to which the U.S. occupies Guantánamo both give the U.S. "complete jurisdiction and control" over Guantánamo. The U.S. makes regular use of this jurisdiction; U.S. and foreign citizens who commit crimes on Guantánamo are tried in U.S. federal courts. Military personnel are tried in U.S. military courts for offences they commit on the base. Since the U.S. exercises jurisdiction over Guantánamo in every other respect, the court reasoned, anyone imprisoned there must also have the right to file for habeas corpus in U.S. courts. 9th Cir. op. at 23.

Thus, according to the Ninth Circuit, those imprisoned at Guantánamo Bay must have access to U.S. courts to challenge the legality of their detention, since the U.S. exercises both sovereignty (albeit adverse sovereignty) and jurisdiction over Guantánamo, and no other authority exists that could grant any relief to the Guantánamo prisoners (e.g. release in the case of unlawful detention or improvement of conditions of incarceration to conform with international law). To rule otherwise would be "inconsistent with fundamental tenets of American jurisprudence and raise[] most serious concerns under international law." 9th Cir. op. at 9.




1Art. 5 of the Third Geneva Convention provides:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [defining POWs], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135.

2The government advances a similar "argument" to show that there is no doubt as to the prisoners' status.

3At the time, temporary control over Landsberg was divided between the French, British, and U.S. governments.

4

"At last, finally, at the end. The last in the train of progression or sequence tended toward by all that preceeds; arrived at as the last result; final.
(Black's Law Dictionary 1522);
"ultimatus completed, last, final
1a: most remote in space or time: farthest, earliest ...
2a: tended toward by all that preceeds: arrived at as the last result..."
(Webster's Third New International DIctionary 2479 [1976]);
3a: basic, fundamental, original, primitive...
4: maximum
(Id. definitions submitted by government)

5 “que decide, resuelve o concluye,” (“that which decides, resolves, or concludes”) (Real Academia Española, at http://www.rae.es/)

6 It is also worth noting, although the Ninth Circuit did not mention this, that the Lease itself was imposed under duress. After the U.S. conquered Cuba during the Spanish-American War, the U.S. government refused to remove its troops from Cuba until the Cuban parliament approved an amendment to the Cuban constitution (the Platt Amendment) allowing the U.S. to attack Cuba at any time, as well as leases of Cuban territory, including that for Guantánamo.

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