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No.
03-55785 D.C. No. CV-03-01267-AHM
OPINION
Appeal
from the United States District Court for the Central District of California A.
Howard Matz, District Judge, Presiding Argued and Submitted August 11, 2003 San
Francisco, California Filed December 18, 2003 Before: REINHARDT, GRABER, Circuit
Judges, and SHADUR, Senior District Judge. *
Opinion
by Judge Reinhardt.
I.
BACKGROUND
This
case presents the question whether the Executive Branch may hold uncharged
citizens of foreign nations in indefinite detention in territory under the
“complete jurisdiction and control” of the United States while effectively
denying them the right to challenge their detention in any tribunal anywhere,
including the courts of the U.S. The issues we are required to confront are new,
important, and difficult.
In
the wake of the devastating terrorist attacks on September 11, 2001, Congress
authorized the President to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such nations,
organizations or persons.
Authorization
for Use of Military Force , Pub. L. No. 107-40, 115 Stat. 224 (2001).
Pursuant
to that authorization, the President sent U.S. forces to Afghanistan to wage a
military operation that has been commonly termed–but never formally
declared–a “war” against the Taliban government and the terrorist network
known as Al Queda.
Starting
in early January 2002, the Armed Forces began transferring to Guantanamo, a
United States naval base located on territory physically situated on the island
of Cuba,1 scores of individuals who were captured by
the American military during its operations in Afghanistan. The captured
individuals were labeled “enemy combatants.” Now, for almost two years, the
United States has subjected over six hundred of these captives to indefinite
detention,2 yet has failed to afford them any means
to challenge their confinement, to object to the failure to recognize them as
prisoners of war, to consult with legal counsel, or even to advance claims of
mistaken capture or identity. Despite U.S. officials’ recent stated intention
to move to begin a sorting of the detainees, electing which to release and which
to try before military tribunals on criminal charges, and the administration’s
designation several months ago of six detainees (including two Britons and one
Australian) deemed eligible for military trials, see Neil A. Lewis, Red
Cross Criticizes Indefinite Detention in Guantanamo, N.Y. TIMES, Oct. 10,
2003, at A1, no military tribunal has actually been convened. Nor has a single
Guantanamo detainee been given the opportunity to consult an attorney, had
formal charges filed against him, or been permitted to contest the basis of his
detention in any way.
Moreover,
top U.S. officials, including Secretary of Defense Rumsfeld, have made it clear
that the detainees may be held in their present circumstances until this
country’s campaign against terrorism ends. Id. The administration has,
understandably, given no indication whether that event will take place in a
matter of months, years, or decades, if ever.3 On
January 20, 2002, a group of journalists, lawyers, professors, and members of
the clergy filed a petition for habeas relief before the United States District
Court for the Central District of California on behalf of the class of
unidentified individuals detained involuntarily at Guantanamo. The petition
named as respondents President Bush, Secretary Rumsfeld, and a number of
military personnel. See Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036
(C.D. Cal. 2002).
After
the district court dismissed the petition for lack of “next-friend”
standing, or, alternatively, for lack of jurisdiction under Johnson v.
Eisentrager, 339 U.S. 763 (1950), this court affirmed on the ground that
petitioners lacked standing, but vacated the court’s jurisdictional rulings
regarding Johnson. See Coalition of Clergy v. Bush, 310 F.3d 1153
(9th Cir. 2002).
Following
our decision, Belaid Gherebi filed an amended next-friend habeas petition in
this Court, on behalf of his brother Faren, in which the standing issue is not
present. In his February 2003 Amended Petition, Gherebi4
alleged violations of the U.S. Constitution and the Third Geneva Convention
arising out of his involuntary detention at Guantanamo, a naval base “under
the exclusive and complete jurisdiction of the respondents,” and he further
claimed that, “Respondents have characterized Gherebi as an ‘unlawful
combatant,’ and have denied him status as a prisoner of war, have denied him
rights under the United States Constitution,. . . have denied him access to the
United States Courts,” and have denied him access to legal counsel.5
The government did not respond.
Thereafter,
Gherebi urged this Court to resolve the “threshhold question” of federal
subject matter jurisdiction in a motion to grant his petition summarily.6
At that point, the government moved to dismiss Gherebi’s petition without
prejudice to its being re-filed in the district court, or alternatively, to
transfer it to the district court so that the district judge could decide the
question of jurisdiction. A motions panel of this Court granted the
government’s request, transferring Gherebi’s petition to the United States
District Court for the Central District of California.
After
additional motions were filed with the district court urging summary disposition
of the jurisdictional question, that court issued a reasoned order on May 13,
2003 dismissing Gherebi’s petition for lack of jurisdiction. See Gherebi v.
Bush,
No. CV 03-1267-AHM(JTL) (C.D. Cal. May 13, 2003) (order dismissing petition for
lack of jurisdiction). The court held that Johnson v. Eisentrager controlled
and foreclosed jurisdiction over Gherebi’s petition in any federal court
because Guantanamo “is not within sovereign U.S. territory.” Id. at
5. In so holding, the court described its conclusion as “reluctant[],” id.
at 2, and expressed hope that “a higher court w[ould] find a principled
way” to provide the remedy of habeas corpus. Id. at 15.
On
appeal before this Court, Gherebi argues that (1) the district court erred in
holding that Johnson v. Eisentrager precludes the district courts of this
nation from exercising jurisdiction over his petition; and (2) the District
Court for the Central District of California has jurisdiction to hear the writ
because the custodians of the prisoners are within the jurisdiction of the
court. We agree with Gherebi on both points. In so holding, we underscore that
the issue before us is not whether Gherebi’s detention will withstand
constitutional inquiry, but rather whether the courts of the United States are
entirely closed to detainees held at Guantanamo indefinitely–detainees who
would appear to have no effective right to seek relief in the courts of any
other nation or before any international judicial body.
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.7
Accordingly, we reverse the ruling of the district court that jurisdiction over
Gherebi’s habeas petition does not lie. Because we also conclude that personal
jurisdiction may be asserted against respondent Rumsfeld in the Central District
of California, we remand the matter to the district court for further
proceedings consistent with this opinion. We do not resolve here, and leave to
the district court to decide, the distinct and important question whether a
transfer to a different district court may be appropriate under 28 U.S.C. §
1404(a).
II.
DISCUSSION
A.
Johnson
v. Eisentrager as a bar to jurisdiction
To
support its contention that habeas jurisdiction does not lie with respect to the
Guantanamo detainees in the Central District or any other district court of the
United States, the government relies primarily on Johnson v. Eisentrager,
339 U.S. 763 (1950). Johnson involved a habeas petition by German enemy
prisoners detained in Landsberg Prison, Germany, after being tried and sentenced
to a fixed term of confinement by a U.S. Military Commission in Nanking, China
for offenses committed in China subsequent to the unconditional surrender of
Germany at the end of World War II. The Court declined to exercise jurisdiction,
holding that the German national petitioners, tried in China for acts committed
there, and confined to prison in Germany, had no right to seek a writ of habeas
corpus in a United States court to test the legality of such detention. Id. at
790.
In
connection with its holding, the Court discussed two factors: first, that the
prisoners were “alien enemies” in a declared war, see generally id. at
769-776 (discussing the significance of alien enemy status and the reach of
jurisdiction); and second, that the petitioners were detained outside “any
territory over the 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.” Id. at
777-78; see generally id. at 777-85 (discussing the significance of
extraterritorial situs, or situs outside U.S. sovereign territory, and the reach
of jurisdiction). The Court explained:
We
are cited to no instance where a court, in this or any other country where the
writ is known, has issued it on behalf of an alien enemy who, at no
relevant time and in no stage of his captivity, has been within its territorial
jurisdiction. Nothing in the text of the Constitution extends such a right,
nor does anything in our statutes.
399
U.S. at 768 (emphasis added). The Johnson Court did not suggest that the
mere “alien enemy” status of petitioners would be sufficient in itself for
the denial of habeas jurisdiction; rather it emphasized that in the case of
alien enemies habeas is not available when their acts and the situs of their
trial and detention all lie outside of this nation’s territorial jurisdiction.8
The government contends that the exercise of habeas jurisdiction over
Gherebi’s petition is foreclosed by Johnson because the conditions that
justified the Court’s decision there apply equally to Gherebi and the other
Guantanamo detainees. We may assume, for purposes of this appeal, that most, if
not all of those being held at Guantanamo, including Gherebi, are the equivalent
of “alien enemies,” indeed “enemy combatants,” although we do not
foreclose here Gherebi’s right to challenge the validity of that assumption
upon remand. The dispositive issue, for purposes of this appeal, as the
government acknowledges, relates to the legal status of Guantanamo, the site of
petitioner’s detention. It is our determination of that legal status that
resolves the question regarding the dispositive jurisdictional factor: whether
or not Gherebi is being detained within the territorial jurisdiction of the
United States or within its sovereign jurisdiction, as the case may be.
On
this appeal, the government does not dispute that if Gherebi is being detained
on U.S. territory, jurisdiction over his habeas petition will lie, whether or
not he is an “enemy alien.” In Ex parte Quirin, 317 U.S. 1(1942) and In
re Yamashita, 327 U.S. 1(1946), the Court reviewed the merits of the
habeas petitions filed by enemy alien prisoners detained in U.S. sovereign (or
then-sovereign) territory. In Quirin, the Court rejected on the merits
the claim of enemy German petitioners held in Washington DC (and executed there)
that the President was without statutory or constitutional authority to order
them to be tried by a military commission for the offenses with which they were
charged and had been convicted by the Commission; it then ruled that the
Commission had been lawfully constituted and the petitioners lawfully tried and
punished by it. 317 U.S. at 20-21. In Yamashita, the Court reviewed on
the merits a similar World War II habeas claim on behalf of an enemy Japanese
general, detained in the Philippines, which was U.S. territory at the time.
Yamashita had already been tried, convicted, and sentenced to death by a
military commission. Following Quirin, 327 U.S. at 7-9, the Court
determined that the commission had been lawfully constituted, and that
petitioner was lawfully detained pursuant to his conviction and sentence. Id.
at 25- 6. We need not resolve the question of what constitutional claims
persons detained at Guantanamo may properly allege if jurisdiction to entertain
habeas claims exists.
Suffice
it to say that if jurisdiction does lie, the detainees are not wholly without
rights to challenge in habeas their indefinite detention without a hearing or
trial of any kind, and the conditions of such detention.
1.
Territorial Jurisdiction and Sovereignty
With
respect to the Guantanamo detainees, the government contends that, under Johnson,
the touchstone of the jurisdictional inquiry is sovereignty–not mere territorial
jurisdiction–and that the United States does not maintain sovereignty over
the territory at issue. Jurisdiction is foreclosed, the government argues,
because although the 1903 Lease agreement (and the 1934 Treaty continuing the
agreement [“the Lease and continuing Treaty”])9
which governs the terms of Guantanamo’s territorial relationship to the United
States cedes to the U.S. “complete jurisdiction and control” over the Base,
it recognizes the “continuance of ultimate sovereignty” in Cuba. In other
words, in the government’s view, whatever the Lease and continuing Treaty say
about the United States’ complete territorial jurisdiction, Guantanamo
falls outside U.S. sovereign territory–a distinction it asserts is
controlling under Johnson.
Although
we agree with the government that the outcome of the jurisdictional question in
this case hinges on the legal status of the situs of Gherebi’s
detention, we do not read Johnson as holding that the prerequisite for
the exercise of jurisdiction is sovereignty rather than territorial
jurisdiction. Nor do we believe that the jurisdiction the United States
exercised over Landsberg Prison in Germany is in any way analogous to the
jurisdiction that this nation exercises over Guantanamo. When the Johnson petitioners
were detained in Landsberg, the limited and shared authority the U.S. exercised
over the Prison on a temporary basis nowhere approached the United States’
potentially permanent exercise of complete jurisdiction and control over
Guantanamo, including the right of eminent domain. The United States has
exercised “complete jurisdiction and control” over the Base for more than
one century now, “with the right to acquire...any land or other property
therein by purchase or by exercise of eminent domain with full compensation to
the owners thereof.”10 We have also treated
Guantanamo as if it were subject to American sovereignty: we have acted as if we
intend to retain the Base permanently, and have exercised the exclusive,
unlimited right to use it as we wish, regardless of any restrictions contained
in the Lease or continuing Treaty.
When
conducting its jurisdictional inquiry in Johnson, the Court spoke at
different times of U.S. “territorial jurisdiction” and
“sovereignty”–using the latter term on a minority of occasions11
because it was indisputable that Landsberg Prison was not within either
U.S. territorial jurisdiction or U.S. sovereign territory. The only question for
the Johnson Court was whether it could exercise jurisdiction over
petitioners’ habeas claims in light of the fact that they were being detained
on foreign ground that was not, under any recognized legal standard, treated as
American territory. And while the Court expressly distinguished Yamashita on
the basis that the United States possessed “sovereignty at this time
over these insular possessions,” (the Philippines), the Court nowhere
suggested that “sovereignty,” as opposed to “territorial jurisdiction,”
was a necessary factor. In fact, immediately following this statement, the Court
specifically noted three “heads of jurisdiction” that petitioners
might have invoked, none of which used the term “sovereignty” and all of
which referred instead to “territory”:
Yamashita’s
offenses were committed on our territory, he was tried within the jurisdiction
of our insular courts and he was imprisoned within territory of the
United States. None of these heads of jurisdiction can be invoked by these
prisoners.
Id.
at
780 (emphasis added). Accordingly, Johnson in no way compels the
conclusion that, where the U.S. exercises “territorial jurisdiction” over a
situs, that degree of territorial authority and control is not sufficient to
support habeas jurisdiction . To the contrary, it strongly implies that
territorial jurisdiction is sufficient. In short, we do not believe that Johnson
may properly be read to require “sovereignty” as an essential
prerequisite of habeas jurisdiction.12 Rather
territorial jurisdiction is enough.
It
is evident that the United States exercises sole territorial jurisdiction over
Guantanamo. “Territorial jurisdiction” exists as to “territory over which
a government or a subdivision thereof, or court, has jurisdiction.” See BLACK’S
LAW DICTIONARY 1473 (6th ed. 1990). The U.S. government exercises the “power
to proscribe, prescribe, adjudicate, and enforce the law” in Guantanamo, see
New Jersey v. New York, No. 120, 1997 WL 291594, at * 28 (U.S. 1997), received
at 520 U.S. 1273, and reviewed at 523 U.S. 767 (1998) (describing the
“natural and ordinary meaning of ‘jurisdiction’”), and further, the
government’s jurisdiction is both “complete,” see 1903 Lease, art.
III, supra note 9, and exclusive, see 1903 Supplemental Agreement,
art. IV, id (providing that U.S. courts exercise exclusive criminal
jurisdiction over citizens and aliens, alike, for offenses committed on the
Base). See also 6 Op. Off. Legal Counsel 236, 242 (1982) (opinion of then
Asst.
Attorney
General Ted Olsen) (concluding that Guantanamo falls within “exclusive United
States’ jurisdiction,” “because of the lease terms which grant the United
States ‘complete jurisdiction and control over’ that property”). Where a
nation exercises “exclusive jurisdiction” over a territory, territorial
jurisdiction lies. See U.S. v. Corey, 232 F.3d 1166, 1172-76 (9th Cir.
2000) (examining a provision of a congressional act that defined territorial
jurisdiction to include territory within the “exclusive jurisdiction” of the
United States).
Here,
the relationship between territorial jurisdiction and the right to file habeas
petitions is particularly clear. The United States exercises exclusive criminal
jurisdiction over all persons, citizens and aliens alike, who commit criminal
offenses at the Base, pursuant to Article IV of the Supplemental Agreement. See
supra note 9. We subject persons who commit crimes at Guantanamo to trial in
United States courts.13 Surely, such persons enjoy
the right to habeas corpus in at least some respects. Under these circumstances,
for purposes of our jurisdictional inquiry, it is apparent that the United
States exercises exclusive territorial jurisdiction over Guantanamo and that by
virtue of its exercise of such jurisdiction, habeas rights exist for persons
located at the Base. We reiterate that the essence of our inquiry involves the
legal status of the situs of petitioner’s detention–not the question whether
“enemy combatants” in general are precluded from filing habeas petitions, or
the question whether any particular constitutional issues may be raised.
The
first of these questions is answered by Quirin and Yamashita and
the second is not before us.
In
sum, we conclude that by virtue of the United States’ exercise of territorial
jurisdiction over Guantanamo, habeas jurisdiction lies in the present case.14
Although our conclusion is dispositive of the principal issue before us, we also
consider an alternative ground for our holding: whether the U.S. exercises
sovereignty over Guantanamo.
2.
Sovereignty and the 1903 Lease and Continuing Treaty of 1934
Even
if we assume that Johnson requires sovereignty, our decision that habeas
jurisdiction lies is the same. In this regard, we conclude that, at least for
habeas purposes, Guantanamo is a part of the sovereign territory of the United
States. Both the language of the Lease and continuing Treaty and the practical
reality of U.S. authority and control over the Base support that answer.
Moreover, the present case is far more analogous to Yamashita than to Johnson:
here, like in Yamashita but contrary to the circumstances in Johnson,
the United States exercises total dominion and control over the territory in
question and possesses rights of eminent domain, powers inherent in the exercise
of sovereignty, while Cuba retains simply a contingent reversionary interest
that will become effective only if and when the United States decides to
relinquish its exclusive jurisdiction and control, i.e. sovereign dominion, over
the territory. Thus, we hold that the prerequisite to the exercise of habeas
jurisdiction is met in the case of Guantanamo, whether that prerequisite be
“territorial jurisdiction” or “sovereignty.” We now turn to an analysis
of the term “sovereignty” and its application, for purposes of habeas, to
the United States’ role at Guantanamo. The government argues that, under the
plain terms of the Lease, the “continuance” of Cuba’s “ultimate”
sovereignty means that Cuba retains “maximum” or “definitive”
sovereignty over the Base during the indefinite period of U.S. reign, and
consequently, that Guantanamo cannot be classified as U.S. sovereign territory
for the purposes of our jurisdictional inquiry. The government’s assertion
requires us to consider whether “ultimate” is to be construed as a
“temporal” or a “qualitative” modifier. In other words, does the Lease
(and the 1934 continuing Treaty) vest 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 does 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? We conclude that, as
used in the Lease, “ultimate sovereignty”can only mean temporal and not
qualitative sovereignty. We also conclude that, during the unlimited and
potentially permanent period of U.S. possession and control over Guantanamo, the
United States possesses and exercises all of the attributes of sovereignty,
while Cuba retains only a residual or reversionary sovereignty interest,
contingent on a possible future United States’ decision to surrender its
complete jurisdiction and control.15
“Ultimate” is defined principally in temporal, not qualitative, terms. Black’s
Law Dictionary defines “ultimate” to mean:
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. Similarly, Webster’s Third New International’s
first two definitions state:
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). Webster’s then gives as
the less-frequently used meaning the definition urged here by the government:
3a:
basic, fundamental, original, primitive...
4:
maximum Id.
The
primary definition (including Webster’s first and second meanings)
dictates a construction of the Lease under which sovereignty reverts to Cuba if
and when the United States decides to relinquish control. Therefore, under that
definition, the United States enjoys sovereignty during the period it occupies
the territory. Adopting the alternative qualitative construction (Webster’s
third and fourth meanings, and the government’s proffered definition)
would render the word “ultimate” wholly superfluous. If the Lease vests
sovereignty in Cuba during the indefinite period as to which it has ceded to the
U.S. “complete jurisdiction and control,” nothing would be added to the use
of the term “sovereignty” by employing a modifier describing sovereignty as
“basic, fundamental” or “maximum.” If the government’s understanding
of ultimate were correct, no sovereignty would vest in the United States at any
time and all sovereignty would vest in Cuba at all times with or without the use
of the word “ultimate.” In such circumstance, a simple statement that Cuba
retains sovereignty would suffice. In contrast, construing “ultimate” to
mean “last, final” or “arrived at as the last result,” or in practical
terms a reversionary right if and when the lease is terminated by the United
States, serves to define the nature of Cuban sovereignty provided for under the
Lease and gives meaning and substantive effect to the term “ultimate.” Under
the preferred construction of “ultimate,” the use of that term in the Lease
establishes the temporal and contingent nature of Cuba’s sovereignty,
specifying that it comes into being only in the event that the United States
abandons Guantanamo: in such case, Guantanamo reverts to Cuba and to Cuban
sovereignty rather than being subject to some other actual or attempted
disposition. Most important, under the preferred temporal construction, Cuba
does not retain any substantive sovereignty during the term of the U.S.
occupation, with the result that, during such period, sovereignty vests in the
United States. This Court’s duty to give effect, where possible, to every word
of a treaty, see United States v. Menasche, 348 U.S. 528, 538-539 (1955),
should make us reluctant to deem treaty terms, or terms used in other important
international agreements, as surplusage.
See
Duncan v. Walker,
533 U.S. 167, 174 (2001). This is especially the case when a term occupies a
pivotal place in a legal scheme, id., as does the word “ultimate” in
Article III of the 1903 Lease. In construing the Lease and continuing Treaty, we
adopt the primary, temporal definition of the term, as used in the English
language–a term that gives its use as a modifier substantive meaning.16
That the Lease uses the word “continuance” to describe Cuba’s “ultimate
sovereignty” does nothing to undercut the temporal construction of
“ultimate.” As we have explained, during the period the United States
exercises dominion and control, i.e. sovereignty, over Guantanamo, Cuba retains
a contingent sovereign interest–a reversionary right that springs into being
upon a lawful termination of the U.S. reign. It is this reversionary interest
that is “continued” even as substantive (or qualitative) sovereignty is
ceded to the United States. In effect, the lease functions not unlike a standard
land disposition contract familiar in the area of property law, in which the
partitioning of a bundle of rights into present and future interests is
commonplace.17
Finally, the term “ultimate” sovereignty must be construed in context. It is
clearly the temporal definition of “ultimate,” not its qualitative
counterpart, that most naturally and accurately describes the nature of Cuban
sovereignty in Guantanamo. By the plain terms of the agreement, the U.S.
acquires full dominion and control over Guantanamo, as well as the right to
purchase land and the power of eminent domain. Until such time as the United
States determines to surrender its rights, it exercises full and exclusive
executive, legislative and judicial control over the territory, and Cuba retains
no rights of any kind to do anything with respect to the Base.18
If “ultimate” can mean either “final” (temporal) or “basic,
fundamental, and maximum” (qualitative), given that Cuba does not under the
agreement retain any
degree of control
or jurisdiction over Guantanamo during the period of United States occupation,
the use of the term “ultimate” as a modifier of “sovereignty” in that
agreement can only mean “final”(temporal) and not “basic,
fundamental, and maximum” (qualitative). Accordingly, we conclude that the
Lease and continuing Treaty must be construed as providing that Cuba possesses
no substantive sovereignty over Guantanamo during the period of the U.S. reign.
All such sovereignty during that indefinite and potentially permanent period is
vested in the United States.
3.
Conduct of the Parties Subsequent to the Lease and Continuing Treaty
There
is another consideration that militates in favor of our concluding that the
United States is presently exercising sovereignty over Guantanamo. For a
considerable period of time, our government has purposely acted in a manner
directly inconsistent with the terms of the Lease and continuing Treaty. Those
agreements limit U.S. use of the territory to a naval base and coaling station.
Contrary to the relevant provisions of the agreements, the United States has
used the Base for whatever purposes it deemed necessary or desirable. Cuba has
protested these actions in public fora and for years has refused to cash the
United States’ rent checks.
See
Center
for International Policy’s Cuba Project, Statement by the Government of Cuba
to the National and International Public Opinion (Jan. 11, 2002), at http://ciponline.org/cuba/cubaproject/cubanstatement.htm
(last
visited Nov. 10, 2003).
At
the same time, the Cuban government has admitted that it is powerless to prevent
U.S. uses that conflict with the terms of the Lease and continuing Treaty.19
Id.
Sovereignty
may be gained by a demonstration of intent to exercise sovereign control on the
part of a country that is in possession of the territory in question and that
has the power to enforce its will. See States v. Rice, 17 U.S. (4 Wheat.)
246, 254 (1819) (hostile occupation gives “firm possession” and the
“fullest rights of sovereignty” to the occupying power, while suspending the
sovereign authority of the land whose territory is being occupied); Cobb v.
U.S., 191 F.2d 604, 608 (9th Cir. 1951) (an occupying power may acquire
sovereignty through an act of formal annexation or “an expression of intention
to retain the conquered territory permanently”); see also Fleming v. Page,
50 U.S. (9 How.) 603, 614 (1850) (the U.S. had
“sovereignty and dominion” over the occupied Mexican territory, where “the
country was in the exclusive and firm possession of the U.S., and governed by
its military authorities acting under the orders of the President”). Cf.
Neely v. Henkel, 180 U.S. 109, 119 (1901) (where the occupation policy
expressly disavows “exercise of sovereignty, jurisdiction, or control” over
the occupied area, and is aimed at the establishment of a government to which
the area may be restored, this occupied territory is considered “foreign”).
With respect to Guantanamo, the sovereign face of U.S. authority and power has
taken shape in recent decades. It 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. Whatever 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.
The
United States originally leased the Base, pursuant to the 1903 agreement, for
use as a naval and coaling station. See 1903 Lease, supra note 9.
Base relations remained stable through the two world wars, but after the United
States terminated diplomatic relations with Cuba in 1961, following the Cuban
revolution, the United States began to use the base for purposes contrary to the
terms of the agreement. See Guantanamo
Bay, A Brief History, at http://www.nsgtmo.navy.mil/Default.htm
(last
visited Nov. 10, 2003). At the same time, many citizens of the host country
sought refuge on the Base, and U.S. Marines and Cuban militiamen began
patrolling opposite sides of the Base’s fence line–patrols that have
continued 24 hours a day ever since. Id. In 1964, Fidel Castro cut off
water and supplies to the Base and Guantanamo became and remains entirely
self-sufficient, with its own water plant, schools, transportation,
entertainment facilities, and fast-food establishments. See Gerald
Neuman, Anomalous Zones, 48 STAN. L. REV. 1197, 1198 (1996). As of 1988,
approximately 6,500 people lived on the Base, including civilian employees of
several nationalities, see id. (describing the findings of one
researcher), and the United States has employed hundreds of foreign nationals at
Guantanamo, including Cuban exiles and Jamaicans. Id. at 1128. Today, the
Base is in every way independent of Cuba and in no way reliant on Cuba’s
cooperation.
The
United States’ refusal to limit its dominion and control to the use permitted
by the Lease and continuing Treaty became more pronounced in the 1990's, when
President Clinton used the Base as a detention facility for approximately 50,000
Haitian and Cuban refugees intercepted at sea trying to reach the United States
for refuge.20
See Laura
Bonilla, Afghan War Prisoners in Guantanamo, AGENCE FRANCE-PRESSE, Dec.
29, 2001, available at 2001 WL 25095452. In 1999, President Clinton again
proposed using the Base in a manner not authorized by the terms of the
lease–this time to house 20,000 refugees from Kosovo. See Philip
Shenon, U.S.
Chooses
Guantanamo Bay Base in Cuba for Refugee Site,
N.Y. TIMES, Apr. 7, 1999, at A13. Although, in the end, this plan was not
implemented, the earlier actions only foreshadowed the 2002 arrival of over 600
individuals alleged to be members of Al- Queda or the Taliban, who were
transported to Guantanamo by the U.S. military for reasons wholly unrelated to
the operation of a naval base and coaling station.
If
“sovereignty” is “the supreme, absolute, and uncontrollable power by which
any independent state is governed,” “the power to do everything in a state
without accountability,” or “freedom from external control: autonomy,
independence,”21 it would appear that there is no
stronger example of the United States’ exercise of “supreme power,” or the
adverse nature of its occupying power, than this country’s purposeful actions
contrary to the terms of the lease and over the vigorous objections of a
powerless “lessor.” See also New Jersey, 1997 WL 291594, at * 30
(“The plain and ordinary import of jurisdiction without exception is the
authority of a sovereign.”). Any honest assessment of the nature of United
States’ authority and control in Guantanamo today allows only one conclusion:
the U.S. exercises all of “the basic attribute[s] of full territorial
sovereignty.” See Dura v. Reina, 495 U.S. 676, 685 (1990). Accordingly,
we conclude that, under any reading, Johnson does not bar this Court’s
jurisdiction over Gherebi’s habeas petition.
4.
The Guantanamo Lease and Treaty and the Panama Canal Zone Treaty
Our
conclusion that habeas jurisdiction lies in this case is bolstered by a
comparison of the Guantanamo Lease and continuing Treaty and the Panama Canal
Zone Treaty. The two contemporaneously negotiated agreements are unparalleled
with respect to the nature of the cession of quintessentially sovereign powers
to the United States. Concluded the same year by the Theodore Roosevelt
administration,22 the Guantanamo and Canal Zone
agreements are widely viewed as substantially similar. See, e.g., 35 Op.
Att’y Gen. 536, 540 (1929) (noting that the Canal Zone agreement “would
appear to be no less comprehensive a grant than the lease from Cuba”).23
Both agreements provide for the ceding of all dominion and control over the
territory without temporal limitation, and each limits U.S. use to a particular
purpose. Both afford the U.S. the right of eminent domain and the right to
purchase real property. Both provide for yearly payments to the ceding nation as
specified in the agreements. Only a voluntary act on the part of the United
States could, given the terms of the two agreements, result in the restoration
of the territory to the ceding country.24 Under the
terms of the Panama Convention, in the eyes of our government of the time,
“the sovereignty of the Canal Zone [wa]s not an open or doubtful question.”
26 Op. Att’y Gen. 376, 376 (Sept. 7, 1907). It passed to the United States. As
the Attorney General opined:
Article
3 of the treaty transfers to the United States, not the sovereignty by that
term, but “all the rights, power, and authority” within the Zone that it
would have if it were sovereign, “to the entire exclusion of the exercise by
the Republic of Panama of any such sovereign rights, power or authority...The
omission to use words expressly passing sovereignty was dictated by reasons of
public policy, I assume; but whatever the reason the treaty gives the substance
of sovereignty, and instead of containing a mere declaration transferring
the sovereignty, descends to the particulars “all the rights, power, and
authority” that belong to sovereignty, and negatives any such “sovereign
rights, power, or authority” in the former sovereign.
Id.
at
377-78 (Sept. 7, 1907) (emphasis added). Similarly, the Guantanamo Lease and
continuing Treaty transferred all of the power and authority that together
constitute “sovereignty,” and therefore transferred sovereignty itself. See
25 Op.
Att’y
Gen 441, 444 (1905) (stating that the “Canal Zone is now within the sovereign
jurisdiction of the United States”) (emphasis added); 26 Op. Att’y Gen.
113, 116 (Jan. 30, 1907) (“Unquestionably [Articles II and II] of the treaty
imposed upon the United States the obligations as well as the powers of a sovereign
within the territory described[.]”) (emphasis added); 27 Op. Att’y Gen.
19, 21 (July 24, 1908) (referring to the U.S. as “succeed[ing] to the sovereignty
of the territory” in the Canal Zone) (emphasis added); 41 Op. Att’y Gen.
44, 49-50 (1916) (“[T[he treaty itself...is the patent...by which the United
States acquired its sovereignty and property rights in the Canal Zone”)
(emphasis added). 25
Pursuant to this 1903 Convention, the United States created a complete system of
courts for the Canal Zone, see Egle v. Egle, 715 F.2d 999, 1011 n. 15
(5th Cir. 1983), including a U.S. District Court for the District of the Canal
Zone, a legislative court which exercised both federal and local jurisdiction
over citizens and foreign nationals alike, see FED. R. CRIM. PROC. 54
(Advisory Note to Subdivision (a)(1), ¶ 9 (citing 48 U.S.C. former §§ 1344,
1345)), and issued final decisions reviewable by the Fifth Circuit Court of
Appeals. See 28 U.S.C.A. § 1294. Both the Canal Zone district court and
the Fifth Circuit had jurisdiction to hear the habeas petitions of detainees in
the Zone. See Voloshin v. Ridenour, 299 F. 134 (5th Cir. 1924) (reviewing
three habeas petitions against a U.S. Marshal for the Canal Zone). This
jurisdictional regime continued in existence until October 1979, when, “by the
Panama Canal Treaty, the United States relinquished sovereignty over the
Canal Zone.” Egle, 715 F.2d at 1010 (emphasis added). See supra note
24.
Information
about the practical implementation of the jurisdictional regime that exists in
Guantanamo is comparatively sparse. But see supra note 13. As we have
explained in Section II(A)(1), however, pursuant to Article IV of the 1903
Supplemental Agreement, the United States exercises exclusive jurisdiction over
citizens and aliens alike who commit crimes on the Base. Such persons are
subject to trial for their offenses in United States courts.26
Under the Agreement and continuing Treaty, Cuba is required to turn over to the
U.S. authorities any persons, including Cubans, who commit an offense at
Guantanamo. See supra note 9.
That,
in the case of the Canal Zone, the U.S. established a court physically located
in the territory whereas in the case of Guantanamo it used the services of U.S.
courts
located on the mainland is of no legal significance. What is critical is that in
both instances, the United States exercised criminal jurisdiction over the
territory and the persons there present, and that U.S. criminal statutes applied
to aliens and U.S. citizens alike. In such circumstances, it is difficult to
understand why persons who are subject to criminal prosecution in the United
States for acts committed at Guantanamo should not have the right to seek a writ
of habeas corpus for an alleged wrong committed against them at that
location–including the act of unlawful detention. Indeed, Article IV of the
Supplemental Agreement would appear to be dispositive of the jurisdictional
question before us.
In
sum, the similarity between the Guantanamo and Canal Zone agreements–two sets
of documents unique in the nature of their cession of exclusive dominion and
control to the United States–provides additional support for our conclusion
that jurisdiction lies over Gherebi’s claim. The fact the Canal Zone district
court and the Fifth Circuit entertained individual claims both constitutional
and non-constitutional until Panama re-assumed sovereign control, and that U.S.
courts have exercised criminal, if not civil, jurisdiction over actions
occurring at Guantanamo, simply provides one further compelling reason why we
are unwilling to close the doors of the United States courts to Gherebi’s
habeas claim.
5.
Limited Nature of the Question Presented
We
wish to emphasize that the case before this Court does not require us to
consider a habeas petition challenging the decisions of a military tribunal–a
case that might raise different issues. Unlike the petitioners in Johnson,
and even in Yamashita and Quirin, Gherebi has not been subjected
to a military trial. Nor has the government employed the other time-tested
alternatives for dealing with the circumstances of war: it has neither treated
Gherebi as a prisoner of war (and has in fact declared that he is not entitled
to the rights of the Geneva Conventions, see supra note 7), nor has it
sought to prosecute him under special procedures designed to safeguard national
security. See U.S. v. Bin Laden, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001)
(limiting access to confidential information). Instead, the government is
following an unprecedented alternative27:
under the government’s theory, it is free to imprison Gherebi indefinitely
along with hundreds of other citizens of foreign countries, friendly nations
among them, and to do with Gherebi and these detainees as it will, when it
pleases, without any compliance with any rule of law of any kind, without
permitting him to consult counsel, and without acknowledging any judicial forum
in which its actions may be challenged. Indeed, at oral argument, the government
advised us that its position would be the same even if the claims were that it
was engaging in acts of torture or that it was summarily executing the
detainees. To our knowledge, prior to the current detention of prisoners at
Guantanamo, the U.S. government has never before asserted such a grave and
startling proposition. Accordingly, we view Guantanamo as unique not only
because the United States’ territorial relationship with the Base is without
parallel today, but also because it is the first time that the government has
announced such an extraordinary set of principles–a position so extreme that
it raises the gravest concerns under both American and international law.
6.
Conclusion
In
sum, we hold that neither Johnson v. Eisentrager nor any other legal
precedent precludes our assertion of jurisdiction over Gherebi’s habeas
petition.
Although
we agree with the government that the legal status of Guantanamo constitutes the
dispositive factor in our jurisdictional inquiry, we do not find that Johnson
requires sovereignty rather than simply the existence of territorial
jurisdiction, which unquestionably exists here. Alternatively, we conclude that
both the Lease and continuing Treaty as well as the practical reality of the
U.S.’s exercise of unrestricted dominion and control over the Base compel the
conclusion that, for the purposes of habeas jurisdiction, Guantanamo is
sovereign U.S. territory.
B.
The Jurisdiction of the U.S. District Court for the Central District of
California
Having
determined that Johnson and other legal precedent do not act as a bar to
the jurisdiction of Article III courts, we turn now to the question of whether
the District Court for the Central District of California has personal
jurisdiction over a proper respondent in this case. The habeas corpus statute,
28 U.S.C. § 2241(a), permits the writ to be granted by district courts
“within their respective jurisdictions.” The writ ...does not act upon the
prisoner who seeks relief, but upon the person who holds him in what is alleged
to be unlawful custody....Read literally, the language of § 2241(a) requires
nothing more than that the court issuing the writ have jurisdiction over the
custodian.28
Braden v. 30th
Judicial Circuit Court of Kentucky,
410 U.S.. 484, 495 (emphasis added). A court has personal jurisdiction in
a habeas case “so long as the custodian can be reached by service of
process.” Id.
The
government argues, based on Schlanger v. Seamans, 401 U.S. 487, 489
(1971), that the custodian must be physically present so that he may be
served in the Central District. In Schlanger, the Court concluded that
“the absence of the [proper] custodian is fatal to the jurisdiction of
the Arizona District Court.” Id. at 491(emphasis added). However, one
year later, in Strait v. Laird, 406 U.S. 341, 345 (1972), the Court
distinguished Schlanger, see id. at 344-45, and held that habeas
jurisdiction is proper even though the custodian is not physically present
in the relevant district, as long as the custodian is within reach of the
court’s process. The Court reasoned:
That
such “presence” may suffice for personal jurisdiction is well settled, McGee
v. Int’l Life Ins. Co., 355 U.S. 220; Int’l Shoe Co. v. Washington,
326 U.S. 310, and the concept is also not a novel one as regards to habeas
corpus jurisdiction. In Ex Parte Endo, 323 U.S. 283, we said that habeas
corpus may issue “if a respondent who has custody of the prisoner is within
reach of the court’s process....” Strait’s commanding officer is
“present” in California through his contacts in that State; he is
therefore “within reach” of the federal court in which Strait filed his
petition.
See
Donigian v. Laird,
308 F.Supp. 449, 453; cf. United States ex. rel. Armstrong v. Wheeler,
D.C., 321 F.Supp. 471, 475.
Id.
at
345 n.2 (emphasis added). By invoking International Shoe, and speaking in
terms of “contacts” and the “reach of the court’s process,” the Court
in Strait imported the standard doctrine of personal jurisdiction into
the analysis of jurisdiction pursuant to 28 U.S.C. § 2241. See also id. at
349 (Rehnquist, J., dissenting) (noting that the majority opinion in Strait held
that “the type of contacts that have been found to support state jurisdiction
over nonresidents under cases like [International Shoe] would also
suffice for habeas jurisdiction”).
Having
established that Secretary Rumsfeld need not be physically present in order for
the Central District to exercise jurisdiction, the next question is whether the
Secretary has the requisite “minimum contacts” to satisfy the forum
state’s long-arm statute,29 which extends
jurisdiction to the limits of due process. See CAL. CODE OF CIV. PRO.
410.10. Constitutional due process concerns are satisfied when a nonresident
defendant has “certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional conceptions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945). Where a defendant’s activities in the forum are substantial,
continuous, and systematic, general jurisdiction is available, and the foreign
defendant is subject to suit even on matters unrelated to his or her contacts
with the forum. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437
(1952). Here, the activities of Secretary Rumsfeld and the department he heads
are substantial, continuous, and systematic throughout the state of California:
California has the largest number of military facilities in the nation
(sixty-one), including major military installations, Department of Defense
laboratories, and testing facilities. See California’s Technology,
Trade, and Commerce Agency, Business & Community Resources, Military Base
Revitalization, http://www.commerce.ca.gov/state/ttca (last visited Nov. 10,
2003). Many of these activities are carried out in the Central District of
California. Accordingly, we conclude that Secretary Rumsfeld has the requisite
“minimum contacts” to satisfy California’s long-arm statute, and we hold
that the United States District Court for the Central District has jurisdiction
over Gherebi’s nominal custodian, Secretary Rumsfeld, for purposes of §
2241(a).
C.
Venue
Although
we hold that Johnson does not bar habeas jurisdiction and further
determine that the Central District may exercise personal jurisdiction over the
Secretary, the question of venue presents a final, additional issue. The
government has suggested that we might transfer the petition to the Eastern
District of Virginia.30 The applicable rule is that
“for the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division
where it might have been brought.” 28 U.S.C. § 1404(a); cf. 28 U.S.C.
§ 1406(a) (providing for transfer where venue is wrongly laid).31
In making the decision to transfer, a court must balance the preference accorded
the plaintiff’s choice of forum with the burden of litigating in an
inconvenient forum.
The
defendant must make a strong showing of inconvenience to warrant upsetting the
plaintiff’s choice of forum. As part of this inquiry, the court should
consider private and public interest factors affecting the convenience of the
forum. Private factors include the “relative ease of access to sources of
proof; availability of compulsory process for attendance of unwilling; and the
cost of obtaining attendance of willing witnesses; possibility of view of
premises, if view would be appropriate to the action; and all other practical
problems that make the trial of a case easy, expeditious and inexpensive.” Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Public factors include
“the administrative difficulties flowing from court congestion; the ‘local
interest in having localized controversies decided at home;’ the interest in
having the trial of a diversity case in a forum that is at home with the law
that must govern the action; the avoidance of unnecessary problems in conflict
of laws, or in the application of foreign law and the unfairness of burdening
citizens in an unrelated forum with jury duty.” Piper Aircraft, 454
U.S. at 241 n.6 (quoting Gulf Oil Corp., 330 U.S. at 509).
Decker
Coal Co. v. Commonwealth Edison Co.,
805 F.2d 834, 843 (9th Cir. 1986).
Some
of the above considerations are clearly not applicable to habeas cases.
Moreover,
as a general matter, the district court is not required to “determine the best
venue,” Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.
1992) (discussing the general venue statute, 28 U.S.C. § 1391), and transfer
under § 1404(a) “should not be freely granted.” In re Nine Mile, Ltd.,
692 F.2d 56, 61 (8th Cir. 1982). Section 1404(a) provides for transfer to a more
convenient forum, “not to a forum likely to prove equally convenient or
inconvenient,” Van Dusen v. Barrack. 376 U.S. 612, 646 (1964), and a
“transfer should not be granted if the effect is simply to shift the
inconvenience to the party resisting the transfer.” Id. Further, there
is a strong “presumption in favor of plaintiff’s choice of forums.” Gulf
Oil, 330 U.S. at 508.
This
presumption must be taken into account when deciding whether the convenience of
the parties–rather than the convenience of respondent–requires
a transfer.
In
the typical habeas case, problems of venue are simplified by the fact that
“the person with the immediate control over the prisoner has the literal power
to ‘produce’ the body and is generally located in the same place as the
petitioner.” Henderson, 157 F.3d at 152. Here, however, the
question is significantly more complicated. The place where the prisoner is
being held and in which the immediate custodian is located is not a suitable or
even possible venue; instead, a next-friend habeas movant, resident of
California, is petitioning on behalf of a prisoner held outside of the physical
confines of the United States. Also, in this case, factors such as the
convenience of parties and witnesses and the ease of access to sources of proof
cannot be weighed with the same ease and transparency afforded by the typical
habeas proceeding.
Finally,
the public interest factors, which may be of critical importance here, are such
that it is not possible to evaluate them adequately until after the government
has presented its arguments in the district court.
In
short, here, the question of the appropriate venue involves different
considerations than are present in the ordinary case. While respondent
Rumsfeld’s presence in the Eastern District of Virginia might appear, at first
blush, to warrant transfer to that district, there may be substantial
considerations that will weigh in favor of determining that venue is proper in
the Central District of California.32 In any event,
the government has not formally moved to transfer pursuant to 28 U.S.C. §
1404(a) or put forth the appropriate evidence to support its case;33
the parties have not briefed this issue; and no court has had occasion to
consider the relevant factors bearing on venue such as ease of access to sources
of proof and the convenience and cost of obtaining witnesses. Finally, the
public interest factors in this case may require particularly careful scrutiny
once the complete record is before the district court. All of these questions
are best resolved, in the first instance, by the district court, and we express
no view on the proper outcome here. Accordingly, we remand to the Central
District to determine whether venue is proper, should the government renew its
motion in that forum.
D.
The desirability of a full exploration of the jurisdictional issues by the
Courts of Appeals.
The
dissent asserts that we should defer our decision in this case until after the
Supreme Court has decided the pending Guantanamo detainee case in which
certiorari has been granted. Al Odah v. United States, 321 F.3d 1134
(D.C. Cir. 2003), cert. granted, 2003 WL 22070725 (Nov. 10, 2003). We
strongly disagree. The Supreme Court has always encouraged the Courts of Appeal
to resolve issues properly before them in advance of their determination by the
Supreme Court, reasoning that having a variety of considered perspectives will
aid the Court’s ultimate resolution of the issue in question. See United
States v. Sperry Corp., 493 U.S. 52, 66 (1989) (noting that the Court
“benefit[s] from the views of the Court[s] of Appeals”); United States v.
Mendoza,
464 U.S. 154, 160 (1984) (noting that the Court benefits when several Courts of
Appeal hear an issue prior to Supreme Court review); E. I. Du Pont de Nemours
& Co. v. Train, 430 U.S. 112, 135 (1977) (lauding the “wisdom of
allowing difficult issues to mature through full consideration by the courts of
appeals” and noting that having a variety of perspectives can “vastly
simplif[y] our task”). Circuit courts have also noted the importance of
several circuits’ examining important legal questions before the Supreme Court
makes a final determination. Va. Soc'y for Human Life, Inc. v. FEC, 263
F.3d 379, 393 (4th Cir. 2001) (emphasizing that opinions from multiple circuits
helps develop “important questions of law” and that the Supreme Court
benefits from “decisions from several courts of appeals”);
Atchison,
T. & S.F. Ry. v. Pena,
44 F.3d 437, 447 (7th Cir. 1994) (Easterbrook, J., concurring) (noting that
conflicting decisions “among the circuits . . . [lend] the Supreme Court [the]
benefit of additional legal views that increase the probability of a correct
disposition”). This is especially the case here, given the importance of the
issue, the dearth of considered opinions, and the conflict in views and
reasoning that, as a result of our opinion, will now be available to the Supreme
Court.
III.
CONCLUSION
We
hold that the district court erred in concluding, based on Johnson v.
Eisentrager, that no district court would have jurisdiction over Gherebi’s
habeas petition. We also hold that the Central District may exercise
jurisdiction in this case because the Secretary of Defense is subject to service
of process under the California long-arm statute. Finally, we remand to the
district court for consideration of the question whether transfer to a different
district than the Central District of California would be appropriate.
REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Counsel
Stephen Yagman, Esq., Venice, California, for Petitioner-Appellant.
Paul
Clement, Department of Justice, Washington, DC, for Respondents-Appellees.
Gherebi
v. Bush, No. 03-55785 GRABER, Circuit Judge, dissenting:
With
regret, I must respectfully dissent.
The
second sentence of its opinion contains the key to the majority’s errors here:
"The issues we are required to confront are new, important, and
difficult." Maj. op. at 2. Although the issues that we confront are
important and difficult, they are not new. Because the issues are not new, we
are bound by existing Supreme Court precedent, which the majority misreads.
Because the issues are important and difficult, the Supreme Court has decided to
revisit them, and we should await the Supreme Court’s imminent decision.
1.
Johnson v. Eisentrager In Johnson v. Eisentrager, 339 U.S. 763 (1950),
the Supreme Court held that an enemy alien who was detained by the United States
military overseas could not bring a petition for habeas corpus in the courts of
the United States. Our courts lack jurisdiction in that circumstance, and the
sole remedy for the enemy alien lies with the political branches of government.1
Id. at 779-81.
A
stra |
