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Newark, N.J.-Three ex-federal judges from New Jersey have filed U.S. Supreme Court briefs opposing the detention, without judicial review, of 660 men at the Guantanamo Bay Naval Base in Cuba. One of them, John Gibbons, former chief judge of the 3d U.S. Circuit Court of Appeals, will argue for the petitioners on the merits. The other two, Stephen Orlofsky and H. Lee Sarokin, put their names on an amicus brief by former judges who believe that the federal judiciary needs the power of habeas review over people held by the U.S. government. The consolidated cases Gibbons will argue- Rasul v. Bush, No. 03-334, and Odah v. U.S., No. 03-343-will force a final answer to a hard question: whether U.S. courts have the jurisdiction to consider habeas corpus challenges to the detention of foreign nationals captured in the post-Sept. 11 fighting in Afghanistan. Gibbons’ firm, Gibbons, Del Deo, Dolan, Griffinger & Vecchione of Newark, N.J., has been at the forefront of several challenges to executive power exercised in the name of national security. The firm has litigated challenges to secrecy in the U.S. immigration courts and the use of New Jersey jails to hold Muslim detainees. ‘Rasul’ has key difference All of the other post-Sept. 11 cases making their way through the courts have implicated the rights of those accused by the government or the rights of U.S. citizens to observe or scrutinize the government’s national security activities. In Rasul, by contrast, the main issue is about the right of judges even to hear the cases. A ruling favoring the Bush administration’s detention efforts at Guantanamo Bay would carve out a new area of law into which judges would be forbidden to tread-something the Supreme Court does not often contemplate. Gibbons will represent British citizens Shafiq Rasul and Asif Iqbal and Australians Mamdouh Habib and David Hicks. Rasul, Iqbal and Habib were arrested in Pakistan after Sept. 11, 2001; Hicks was arrested fighting in Afghanistan. Hicks, a Caucasian Muslim convert, has become a cause c�l�bre in Australia, where his father Terry leads a campaign called “Fair Go For David.” The father has delivered chocolate and vegemite-a salty yeast extract that Australians put on their sandwiches-to his son in Guantanamo, and has locked himself in a cage on Broadway in New York to draw attention to his son’s plight. Terry Hicks admits his son trained with the Taliban military in Afghanistan, and is merely asking for a visible, meaningful trial. Orlofsky, who retired in 2003, said he’s not as interested in the merits of the detentions as he is in the issue of judicial review. When the government began detaining fighters and suspects after Sept. 11, 2001, he realized that habeas was bound to be a key issue. Guantanamo Bay belongs to Cuba, but is used by the United States under an unusual permanent loan arrangement. If the former judges are to win their case, they must get past the government’s main argument, which leans heavily on Johnson v. Eisentrager, 339 U.S. 763 (1950). That precedent states that U.S. courts lack jurisdiction over aliens detained outside of American sovereign territory. The government’s case against judicial review has so far been argued successfully in the D.C. and 9th circuits by Deputy Solicitor General Paul Clement. Guantanamo-like China-is geographically beyond federal jurisdiction, Clement has said. He did not return a call for comment.

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