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Since the terrorist attacks of Sept. 11, 2001, the Bush administration has constructed many of its policies in the war on terror on the legal foundation of a World War II-era Supreme Court decision, Johnson v. Eisentrager. To the government, Eisentrager stands for the principle that foreign nationals held outside U.S. territory have absolutely no right to seek relief from the federal courts. But at Supreme Court arguments on April 20 in Rasul v. Bush and Al Odah v. United States — two cases challenging the administration’s lengthy detention of roughly 650 alleged enemy fighters at Guantanamo Bay, Cuba — that foundation suddenly seemed shaky. Several justices took issue with the administration’s interpretation of Eisentrager — a case brought by 21 German prisoners convicted by a U.S. military tribunal in the aftermath of World War II. One justice called the decision “ambiguous” and “hard . . . to fathom.” Some, most notably Justice John Paul Stevens, questioned whether the case, decided more than 50 years ago, remains good law. “It’s obvious that there is language in Eisentrager that supports you. . . . There is also language, as you have heard, that’s against you,” Justice Stephen Breyer remarked to Solicitor General Theodore Olson. “It seems rather contrary to an idea of a Constitution with three branches that the executive branch would be free to do whatever they want without a check.” Justice Sandra Day O’Connor, whose vote could determine the outcome of the case, even suggested that Eisentrager undercuts the administration’s stance that federal courts do not have authority to consider claims brought by noncitizens held outside the United States. “What [the Eisentrager Court] seemed to do was to reach the merits and say at the end of the day these people have no rights,” O’Connor remarked. “They have had a trial under the military tribunal and they have no rights that could be granted.” For his part, Olson vigorously defended the government’s position that Eisentrager establishes a clear rule under which foreign-born prisoners held outside U.S. borders are not entitled to court review. “This is a decision that was widely perceived, and has been consistently perceived, as a definition of the scope of the habeas statute,” Olson said. With few wartime precedents to draw on, government lawyers rely almost exclusively on Eisentrager to argue that U.S. courts cannot consider habeas corpus petitions brought by foreign detainees held in military custody at the U.S. naval base at Guantanamo Bay. Two lower D.C. courts embraced the administration’s view; both dismissed the claims of the Guantanamo prisoners based on Eisentrager. No doubt, the administration hoped for a similar reception from the Supreme Court. Its final brief in the case refers to Eisentrager by name more than 160 times. The Bush administration relies on Eisentrager to defend other controversial actions in the war on terrorism as well, including its refusal to allow alleged Sept. 11 co-conspirator Zacarias Moussaoui to obtain testimony from military detainees in U.S. custody outside the United States. The government argues that if the writ of habeas corpus does not extend to enemy aliens held abroad, neither does the federal judiciary’s power to compel the production of witnesses. In its April 22 ruling in the Moussaoui case, the U.S. Court of Appeals for the 4th Circuit calls the government’s application of Eisentrager “incorrect.” In the Guantanamo case, the administration portrays Eisentrager as unequivocally supportive of its position that the detainees have no access to the courts. But the 1950 opinion includes at least some language that suggests the contrary. For instance, the decision specifically states, “the doors of our courts have not been summarily closed upon these prisoners.” Lawyers representing Guantanamo prisoners say the government has presented only one side of a very complex ruling. “The Eisentrager opinion dealt with enemy aliens who had full process before a military tribunal. The only question was: Are the civil courts going to re-review what happened in military tribunals?”says Shearman & Sterling partner Thomas Wilner, who represents the 12 Kuwaitee plaintiffs in Al Odah. “That is so different from what’s happened here.” Prior to Sept. 11, the case of German intelligence officer Lothar Eisentrager was a case for the textbooks, rarely cited in litigation. Eisentrager worked for German forces in China during World War II, monitoring the activities of the Allied forces in the Pacific. After Germany surrendered, he began providing intelligence to the Japanese. Following Japan’s surrender, Eisentrager and 27 other alleged German operatives were taken into custody by the U.S. military in 1946 and prosecuted for war crimes before a U.S. military commission in Shanghai. Of the group, six were acquitted and the rest, sentenced for periods ranging from five years to life, were transferred to Landsberg Prison in Germany to serve their sentences. In 1948, an American lawyer filed habeas petitions in federal court in Washington, D.C., on behalf of the 21 German prisoners. The trial court dismissed the case, but the Court of Appeals for the District of Columbia reversed, ruling that the habeas corpus rights extend to any individual imprisoned by U.S. authorities. The Truman administration appealed and the case came before the Supreme Court on April 17, 1950. In a 6-3 decision penned by Justice Robert Jackson less than two months later, the Court held that the prisoners — as citizens of an enemy nation who had been captured as part of military operations, tried and convicted of war crimes by a military commission, and never set foot on American soil — had no right to demand protection from U.S. courts. “The privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection,” wrote Jackson, who served as chief prosecutor before the Nuremberg war crimes tribunal. “No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign.” According to a recent article in The Washington Post, though Eisentrager was originally sentenced to spend the rest of his life in prison, he and the other plaintiffs were later released under political pressure. Since the Court’s decision, Eisentrager has been taught in constitutional law classes as a significant case in wartime jurisprudence, but has had limited practical bearing. That all changed as the Bush administration crafted its response to the Sept. 11 terrorist attacks. The administration wanted maximum flexibility to hold and interrogate suspected terrorists without interference from the courts, and Eisentrager became the linchpin of the government’s legal position. In March 2003, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of the government. The unanimous decision focused on obvious similarities between the situation of the Guantanamo detainees and that of the German prisoners in Eisentrager. “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. . . ,” wrote Judge A. Raymond Randolph. “The consequence is that no court in this country has jurisdiction to grant habeas relief.” At last week’s argument before the Supreme Court, most justices seemed reluctant to reach such a sweeping conclusion. Justice Ruth Bader Ginsburg brought up factual differences between the status of the Guantanamo detainees and that of the German prisoners, noting that the former have neither been tried nor convicted. The justices also probed the government’s assertion that the U.S. naval base at Guantanamo Bay is foreign territory in the same sense as postwar Germany. Under the terms of a 100-year-old lease agreement with Cuba, Cuba retains “ultimate sovereignty,” but the United States has “complete jurisdiction and control” over the property. Justice Antonin Scalia seemed to agree with the government that sovereignty and not control is the critical factor. “[The treaty] says the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the leased area. Now I take that to mean that they are sovereign even during the term of the lease. You may say it’s artificial, but there it is,” Scalia said. Retired federal appellate judge John Gibbons, who argued for the detainees, responded that Cuba’s technical sovereignty over Guantanamo Bay has no meaning. “Cuban law has never had any application inside that base,” said Gibbons, who served 20 years on the U.S. Court of Appeals for the 3rd Circuit in Newark, N.J. “A stamp with Fidel Castro’s picture on it wouldn’t get a letter off the base.” Justice Stevens pointed out that at the time Eisentrager was decided, courts could only consider habeas claims brought by prisoners within their physical jurisdiction. The controlling case Ahrens v. Clark was subsequently overruled. “The context of [ Eisentrager] was it was decided at a time when Ahrens against Clark was the law,” Stevens said. “And if the dissenting opinion in Ahrens against Clark had been the law, it would have been decided differently.” The current Bush administration is not the first to adopt an expansive view of Eisentrager, or to apply its holdings to Guantanamo Bay. In the early 1990s, some 275 Haitians seeking asylum — many infected with AIDS — were held in quarantine at Guantanamo Bay for 18 months. The first Bush administration cited Eisentrager in refusing their entry. As a presidential candidate, Bill Clinton promised to release the refugees but then declined to act until June 1993, when a federal judge in New York issued a scathing rebuke. Georgetown University Law Center professor Neal Katyal studied Eisentrager as a Justice Department lawyer from 1997 until 1999, and says the decision “does not go nearly so far as to say all people outside the United State are stripped of the right of judicial review forever.” Katyal — who authored an amicus brief supporting limited federal court access for detainees at Guantanamo Bay — points to yet another wrinkle in the Eisentrager decision that may influence the Court. According to Katyal, Eisentrager’s lawyer never pursued a straightforward habeas claim based on plain language in the federal habeas corpus statute that makes judicial review available to individuals “in custody in violation of the Constitution or laws or treaties of the United States” — a claim that has been raised in the current case. “The reason Eisentrager can say what it says is because Mr. Eisentrager’s lawyer forgot to raise obvious claims under the habeas statute,” says Katyal.”In no way, shape, or form can it be labeled a clear decision that provides binding guidance today.”

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