Rasul v. Bush

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Rasul v. Bush was a lawsuit in which the U.S. Supreme Court decided that the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. The 6-3 ruling on June 29, 2004 reversed a Washington D.C. District Court's ruling that it has no jurisdiction to handle wrongful imprisonment cases for foreign nationals. The claimant whose name the case bears, Shafiq Rasul, was released before the decision was handed down.

Contents

Circumstances of capture

The various plaintiffs came to be in Guantanamo Bay by different routes, but were generally captured or arrested during the U.S. invasion of Afghanistan.

Rasul, Asif Iqbal and David Hicks were transferred to Guantanamo Bay in December 2001, deny that they voluntarily joined any terrorist forces. Denials of actually having fought for the Taliban, as noted by the District Court, are conspicuously absent; but they do claim that if they did take up arms, it was only when being attacked and in self-defense. Rasul and Iqbal say they were with the Taliban because that they were taken captive. Hicks is silent on the matter in court filings, but his father, in filing the brief, stated that he believed that his son had joined the Taliban forces.

The twelve Kuwaitis claim they were in Pakistan and Afghanistan giving humanitarian aid, and were seized by villagers seeking bounties. They were transferred to Guantanamo Bay starting in January 2002.

Mahmoud Habib was arrested by Pakistani authorities on October 5, 2001, two days before the fighting began.

Procedural history

Original filings

These cases were filed in the Washington, D.C. District Court and the court decided them together. Each of the filings alleged that the government had not allowed them to speak at all to friends, family or lawyers, and had not given them any hearing whatsoever on the question of whether they were in fact enemy combatants in the war.

Rasul v. Bush

Rasul v. Bush was a petition for a writ of habeas corpus (release from unlawful imprisonment) filed on February 19, 2002 by Asif Iqbal and Shafiq Rasul of British citizenship, and David Hicks of Australian citizenship. Their petition requested:

  • That they be released
  • That they be allowed to have private, unmonitored conversations with their attorneys
  • That interrogations cease until the trials were complete

Al Odah v. United States

Al Odah v. United States, filed by twelve Kuwaiti nationals on May 1, 2002, also alleged that they had never been given a fair trial. They charged that they were being denied Fifth Amendment rights, that they must be given access to a trial under the Alien Tort Claims Act, and that the government was in violation of the Administrative Procedures Act. However, they did not ask for habeas corpus, instead asking for the following measures:

  • To be allowed to meet with their families
  • To be informed of the charges against them
  • To obtain lawyers, and to speak to them
  • To have a trial or military tribunal to determine their guilt or innocence

Habib v. Bush

Mahmoud Habib, an Australian citizen, filed a suit very similar to Rasul on June 10, 2002. The Court dismissed it, on the same grounds as the other two, on August 8.

D.C. District Court's Decision

The District Court dismissed the cases with prejudice on July 30, 2002, on grounds that it did not have jurisdiction because Guantanamo Bay is not a sovereign territory of the United States. It first ruled that the Odah petitioners were in fact asking for habeas corpus, as they were "plainly challeng[ing] the legality of their custody." This meant that jurisdiction would be considered for both cases as though they were asking for release from prison.

Citing Johnson v. Eisentrager (1949), in which the Supreme Court ruled that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison, the District Court ruled that U.S. courts only have jurisdiction in a territory where the U.S. has sovereignty. Because the treaty with Cuba regarding Guantanamo Bay stated that Cuba technically has "complete sovereignty" (though, as the plaintiffs pointed out, the U.S. has all effective powers in the area), the court held, Guantanamo Bay could not be considered a sovereign territory of the United States and therefore foreign nationals could not be given a trial in the U.S.

D.C. Circuit Court

The cases were appealed together to the D.C. Circuit Court on August 8, 2002. It affirmed the decision, stating that there was no U.S. court that had jurisdiction over Guantanamo Bay.

Supreme Court

The case was appealed to the Supreme Court on September 2, 2003 and heard on April 20, 2004.

Release of Rasul and Iqbal

On March 9, 2004, two years after they were first detained, Rasul and Iqbal were released to the United Kingdom with no charges filed, along with three others. On the other hand, the government announced that it planned to charge Hicks and Habib before a military commission. Habib was later released.

Question of jurisdiction

The sole question before the Supreme Court in this case is whether foreign nationals in Guantanamo Bay may invoke habeas corpus (wrongful detainment) at all. Either U.S. citizenship or court jurisdiction is necessary for this invocation, and since the detainees are not citizens, U.S. court jurisdiction over Guantanamo Bay is the issue. According to the U.S. treaty with Cuba over Guantanamo Bay, the U.S. has "complete jurisdiction" over the base, but Cuba has "ultimate sovereignty." The government alleges that the fact that the treaty says this implies that the courts have no jurisdiction; the detainees argue that regardless of what the treaty says, the U.S. has full legal control in the area and should have jurisdiction.

What the court did not consider

There are a number of important questions which the Supreme Court is not considering, as they involve the merits of the case and not the question of whether the courts have jurisdiction. They will likely be handled in a new court case if they win:

  • Whether the incarceration was in fact legal, as the detainees allege their status as enemy combatant was never reviewed, making the Geneva Convention section on enemy combatants inapplicable.
  • Whether due process can be given to the detainees. Johnson v. Eisentrager, in which the Supreme Court's decision to deny a group of Germans Fifth Amendment rights hinged on an independent finding that they were enemy combatants, was the pivot of that discussion. According to the detainees, in this case there was no such finding and therefore the defendants are not legally enemy combatants.

Oral arguments

During the oral arguments the following points came up:

  • Many of the Justices' questions indicated a belief that Johnson v. Eisentrager, was immaterial to the jurisdictional question at hand, while the government argued that it was material. Justice Stevens went further to note that the Ahrens v. Clark decision, on which Eisentrager case was decided, had since been largely reversed, and thus relevant parts of Eisentrager may no longer apply.
  • Justice Souter noted that the ability of a U.S. citizen to get a trial may necessarily imply that the court has jurisdiction in that geographic area, since jurisdiction is largely a geographic and sovereignty matter. Since the government has said it would not challenge habeas corpus by a U.S. citizen in Guantanamo Bay, this could establish jurisdiction in the area.
  • There was some concern in the court that we have a gray area where there are certain types of cases which would fall through the cracks, as it were, because no one has real jurisdiction except the U.S. military. On the other hand, Justice Scalia noted, it may be possible, and better, for Congress to remedy that situation, as they have deliberative powers the court does not.

Quotes

Justice Stevens regarding the purpose of jurisdiction: "The Constitution requires jurisdiction -- the Constitution requires that an American citizen who has the protection of the Constitution have some manner of vindicating his rights under the Constitution."

Justice Breyer on whether to deny jurisdiction to citizens outside the U.S. "So what I'm thinking now, assuming that it's very hard to interpret Eisentrager, is that if we go with you, it has a virtue of clarity. There is a clear rule. Not a citizen outside the United States; you don't get your foot in the door. But against you is that same fact. It seems rather contrary to an idea of a constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check."

Justice Scalia on whether the courts or Congress are better suited to rewrite laws: "Can we hold hearings to determine the problems that are bothering you? I mean, we have to take your word for what the problems are. We can't call witnesses and see what the real problems are, can we, in creating this new, substantive rule that we're going to let the courts create? Congress could do all that, though, couldn't it? ... If it wanted to change the habeas statute, it could make all sorts of refined modifications about issues that we know nothing whatever about because we have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts."

References

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