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Washington-In terms of numbers and impact, the U.S. Supreme Court’s ruling last week giving Guantanamo Bay detainees access to federal courts hits the hardest of the three terrorism rulings. But human rights lawyers and others wonder whether it’s a decision for Guantanamo Bay only. Justice Antonin Scalia was correct in his dissent when he warned that “from this point forward,” federal courts will entertain petitions from prisoners all over the world, noncitizens, challenging actions and events far away, said constitutional law scholar Herman Schwartz of American University College of Law. “But I’ve always had the feeling when you have groundbreaking decisions, there are an awful lot of loose ends that have to be patched up,” added Schwartz. “It’s still possible in future cases for courts to say this is a Guantanamo Bay case and require something more.” In Rasul v. Bush, No. 03-334, and Al Odah v. U.S., No. 03-343, a 6-3 majority held that federal courts have jurisdiction to hear habeas challenges to the legality of the detention of foreign nationals captured abroad and incarcerated at Guantanamo Bay, Cuba, naval base. Writing for the majority, Justice John Paul Stevens rejected the Bush administration’s two main arguments against federal habeas jurisdiction. He said the cases were not controlled by Johnson v. Eisentrager, 339 U.S. 763 (1950), which held that aliens detained outside U.S. sovereign territory may not invoke habeas relief. And he held that Guantanamo Bay is within the U.S. territorial jurisdiction because it exercises complete jurisdiction and control over the naval base by its agreements with Cuba and may do so permanently if it chooses. Thomas B. Wilner of New York-based Shearman & Sterling, counsel to the 12 Kuwaitis in Al Odah, said the decision reaches beyond Guantanamo Bay. “What the court upheld was really a principle the English courts upheld for centuries,” he said. “You can’t escape the jurisdiction of the court and the authority of the court to issue the writ of habeas corpus by taking him outside of sovereign territory.” If there is a functioning court system in the country where the prisoner is being detained, the claim may be filed there, added Wilner, the managing partner of Shearman’s international trade and government relations practice. He said he’s preparing to go back into district court to seek access to his clients as the first step in preparing a habeas claim. “But you can’t take people outside the country to a black hole, a lawless void,” Wilner said. “At a lot of military bases, people have access to the courts in that country. The administration purposely chose Guantanamo Bay to avoid the law. They treated the law as an irritant to be avoided.” International law scholar William Aceves of California Western School of Law agreed with Wilner. “The rights follow the detainees even if you’re talking about a U.S. base in another country. On that base, the U.S. exercises the same authority and control.” Skepticism seen But John McGinnis of Northwestern University School of Law said he thinks justices Anthony M. Kennedy, who concurred in the judgment, and Sandra Day O’Connor, who joined the majority, would be skeptical of applying the rulings to prisoners in Iraq or Afghanistan. “I think the idea the court will substantially oversee how the U.S. is dealing with foreign nationals captured in and on the battlefield is far-fetched,” he said. “I think the court is very concerned to say symbolically you can bring claims. That doesn’t mean courts will be sympathetic and release people.” Aceves, human rights lawyers and others said they expect the issue of whether the decision applies beyond Guantanamo Bay will be litigated in future cases. Application of the decision beyond Guantanamo Bay is a “troubling possibility,” said Paul Kamenar of the Washington Legal Foundation. But because the decision was an interpretation of what Congress meant when it enacted the habeas corpus statute, 28 U.S.C. 2241, he said, “Congress can cure any problems by amending the statute. They may even cure it so it won’t apply to Guantanamo Bay.” The counterargument, Kamenar conceded, is that while the decision was technically a statutory ruling, it was done in the context of Great Writ of habeas corpus and so it rested on the constitutional parameters of the writ. “It seemed to me at least one option would be a legislative change.” Joseph Margulies, counsel with the Center for Constitutional Rights to two Australian detainees in Rasul, agreed with Wilner that the decisions hold “emphatically” that, although the executive’s war powers authorize the U.S. to seize people, “it may not place them beyond the reach of legal process.” Margulies and lawyers on both sides also agree that many questions remain about what will follow the rulings. Steven Shapiro, national legal director of the American Civil Liberties Union, said he expects most, if not all, of the 640 detainees to seek some relief in federal court. “It’s an open question whether it will be a collection of individual suits or some coordination of them in a class action habeas proceeding on the legal question of whether they are being detained without process,” said Shapiro. The high court “very carefully” left unresolved what the government has to prove to keep them detained, said Shapiro. “At the very least, the detainees are entitled to the sort of hearing contemplated by Article 5 of the Geneva Conventions-to come in and say, ‘I am not in fact a member of al-Queda; you picked up the wrong person.’ “ Habeas scholar Ira Robbins of American University College of Law said habeas class actions are unlikely because “habeas corpus is all about individualized justice.” But, he said, “Although we have some 600 people, it may be we have patterns of cases, maybe 10 different patterns of people picked up in the same area doing the same thing. Or, we might have 600 individual cases that theoretically can be brought but don’t necessarily need full hearings or full hearings in the United States. There could be military hearings, or we could have federal judges and magistrate judges going down to Guantanamo just as they go into prisons today.” In the Guantanamo decisions, the high court returned to the original understanding of habeas corpus-a challenge to the authority of the king to incarcerate people without charges, said Robbins. The court’s habeas cases typically involve challenges to judicial conviction and judicial sentences, he said. Statistics show the justices are generally pro-petitioner in terms of the right to file for habeas, but very pro-government when it comes to federal courts’ ability to overturn adverse state court rulings. “It’s possible the terrorism cases mean, ‘Sure, we’ll give them access to courts, but when it comes to application of substantive law, don’t expect them to win,’ ” Robbins said. “ The most lasting impression of Rasul and Al Odah may well be the apparent extension of the right of habeas corpus to noncitizens held abroad, and that’s something that undoubtedly should get more attention than it has so far.”

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