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STAFF REPORTER Washington-The story of the Guantanamo Bay detainees seized in the U.S.-Afghan war is a story of how nothing happens, says an American lawyer. Nothing happens, says a British jurist, because the detainees occupy a “legal black hole.” But two cases, one pending in the U.S. Supreme Court and the other likely to get there this year, attempt to make something happen legally for the roughly 700 prisoners being held at the U.S. naval base in Cuba. Some have been held for more than a year and without charges or access to counsel. Two other cases in the courts involve U.S. citizens held without charges in U.S. brigs for their alleged roles in terrorism. The four cases challenge federal judges to examine the scope of their jurisdiction, the limits of executive authority and the weight, if any, to be given to international obligations. The Guantanamo detainees have the highest hill to climb in getting access to federal courts and a review of the legality of their confinement, experts say. “The detainees are in a difficult position because they are not U.S. citizens and they have been captured and detained outside U.S. territory,” said Curtis A. Bradley, a federal courts and international law scholar who teaches at the University of Virginia School of Law. The Bush administration has successfully argued that a 1950 Supreme Court decision bars the federal courthouse to the detainees. The 9th and District of Columbia U.S. circuit courts of appeals have blocked the detainees’ claims. A ‘post-Sept. 11 decision’ The D.C. Circuit decision last month in particular is “clearly a post-Sept. 11 decision in its severity,” said international law scholar Pamela Falk of New York University School of Law. Al Odah Khaled A.F. v. USA, nos. 02-5251, 02-5284, 02-5288. “The decision really says the U.S. courts will not oversee and second-guess interrogation and custodial care,” she said. “It has dramatic implications for the U.S. military, the Defense and Justice departments and U.S. government generally in international armed conflicts.” “There are a number of legacies that will come out of Guantanamo Bay,” said William J. Aceves of California Western School of Law, counsel to a group of international human rights groups that filed a brief in the D.C. Circuit case. “It undermines the credibility of U.S. foreign policy and positions we’ve taken in Egypt, Peru and other countries, where we say they shouldn’t detain someone without counsel and without charges.” The Geneva Conventions of 1949 set standards for the treatment of persons no longer active in hostilities during a state of armed conflict or occupation. They provide different kinds of protection de-pending on individuals’ status. Prisoners of war have special rights in judicial proceedings under the Third Geneva Convention. In February 2002, President Bush issued a statement about how the Third Geneva Convention applies to the Afghan war. He said members of the Taliban are covered by the treaty because Afghanistan is a party to the Third Convention. But he said that Taliban detainees are not entitled to POW status. They hadn’t complied with specified conditions, such as distinguishing themselves from the civilian population by wearing uniforms or insignia and being organized in military units, he said. And he said al-Qaeda is an international terrorist group, not a state party to the convention. The administration calls Taliban and al-Qaeda detainees “unprivileged or unlawful combatants” who, unlike lawful combatants, are not entitled to release when hostilities end and are potentially subject to trial by a military commission. The Third Geneva Convention provides that when a detainee’s status is in doubt, the custodial country should promptly convene a “competent tribunal” to resolve the doubt-an effort to ensure that POW protections kick in as early as possible. “The United States has not done this because it says there is no question, no doubt,” said Aceves. Robert Goldman of American University Washington College of Law notes that U.S. treatment of prisoners taken in the war in Iraq is very different. “We’re doing the right thing now,” he said. “We’re holding people who committed hostile acts against us as presumptive prisoners of war. We and the British are holding Article 5 hearings on their status. We’re playing it by the book.” The 9th Circuit case, pending in the Supreme Court, seems the less likely of the two to interest the justices. The decision turned on the lack of standing by a group of clergy, law professors and others to bring a habeas corpus petition on behalf of all of the detainees. Coalition of Clergy, Lawyers & Law Professors v. Bush, 310 F.3d 1153, 1165 (9th Cir. 2002). The justices may take up that petition for certiorari in early May. The Bush administration has filed a brief in opposition to certiorari. Coalition of Clergy v. Bush, No. 02-1155. Standing was not a problem in three actions consolidated in the D.C. Circuit. The families of 12 Kuwaiti detainees are challenging their confinement, represented by Thomas Wilner of New York’s Shearman & Sterling. And the families of two British and two Australian detainees are in the case, represented by Michael Ratner, Steven Watt and other attorneys at the Center for Constitutional Rights. They allege violations of due process, international law and military regulations and seek a writ of habeas corpus and other relief. All denied that the detainees were enemy combatants or enemy aliens. A D.C. Circuit panel said the ultimate question in all three cases was whether a federal court has jurisdiction to adjudicate their claims. It ruled there was no jurisdiction to issue writs of habeas corpus for aliens detained outside the sovereign territory of the United States. At the heart of the D.C. and lower court 9th circuit rulings was Johnson v. Eisentrager, 339 U.S. 763 (1950), stemming from the conviction of 21 German nationals in China who assisted Japanese forces fighting the United States. They were tried by a U.S. military commission in Nanking and transferred to a prison in Germany under the control of the U.S. Army. One of the 21 sought writs of habeas corpus for all of them, claiming violations of the Constitution and the 1929 Geneva Convention. Writs couldn’t be issued for the “enemy aliens,” the court said, because “these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” The D.C. Circuit panel agreed that the Guantanamo detainees were not “enemy aliens” as the term was used in Eisentrager. The war on terrorism is not against Kuwait, Australia or the United Kingdom, the court said. The panel said the detainees “have much in common” with the German prisoners: “They too are aliens, they too were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in the custody of the American military, and they have never had any presence in the United States.” The court rejected the detainees’ argument that they are in the United States because Guantanamo Bay is, in effect, a territory of the United States and that the government exercises sovereignty over it. The court noted that the U.S. lease of the Guantanamo Naval Base recognizes the sovereignty of Cuba. The detainees’ counsel on April 25 filed a petition for a review by the full circuit court, Watt said. If that fails, he said, they’ll go to the Supreme Court. He said a common misperception is that all of the detainees were captured in Afghanistan, though many were not. “The precedent the court is setting is broad enough to cover that situation as well,” said Watt. “The U.S. government can sweep people up from all over the world and detain them indefinitely.” The reasoning used by the court and the government does not depend on the existence of a war, said Wilner. “It just says a foreigner held outside the U.S. has no access to our courts.” The sovereignty aspect of the ruling is fraught with danger, he said, since the United States can negotiate a lease anywhere in the world, leaving technical sovereignty with another country. “We have taken the view there’s got to be great deference to the executive in this area, but there has to be some judicial review,” Wilner said. “You can’t act as both jailer and judge. If there is no judicial review, the executive never needs to balance or justify its actions. It can hold absolutely innocent people forever.” Support for government The Washington Legal Foundation supported the government as an amicus party in the D.C. case, arguing that federal courts are not open to aliens held overseas by the U.S. military regardless of whether they admit they’re enemy soldiers. Chief Counsel Richard Samp said detainees can raise claims through the executive branch and diplomatic channels. The conservative foundation labeled “particularly pernicious” the efforts of “activist” lawyers to enforce international law in federal courts. Congress, it said, is free to make international law part of federal law but has not done so. Lawyers for the detainees and human rights groups also have sought relief in international forums. The Inter-American Commission on Human Rights of the Organization of American States has issued a preliminary injunction ordering the United States to hold tribunals to determine detainees’ status. “What was important about that decision is the commission implicitly recognizes that the international obligations of the U.S. do apply to Guantanamo even though the U.S. doesn’t have sovereignty,” said Aceves. Recent rulings suggest the court won’t depart radically from the thinking in Eisentrager, said Bradley. But he said differences between Guantanamo and Eisentrager could give it pause: the indefinite duration of the war on terrorism and the lack of any adjudication of the detainees’ status. The Germans did have a chance to contest their status. Ultimately, the detainees’ lawyers said, they hope the court will take a broad view of their cases as well as the detention of U.S. citizens Yaser Hamdi and Joseph Padilla. “They all question the right of the executive to detain without judicial review and without access to counsel,” said Wilner. “They all raise the issue of what controls at all are there in this new war against terrorism. The government has relied on Eisentrager, which deals with World War II. This is a new and different situation.” Coyle’s e-mail address is [email protected]

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