A federal court hearing was set for Tuesday morning on a petition from civil rights advocates challenging the detention of terrorism suspects at the Guantanamo Naval Base in Cuba. U.S. District Court Judge A. Howard Matz decided late Sunday night to consider the petition, filed in U.S. District Court in Los Angeles by a coalition of Los Angeles clergy, journalism professors and civil rights attorneys. [...] It is the first court challenge of the detention of al-Qaida suspects and demands that the U.S. government bring the suspects before a court and define the charges against them. Several issues were to be considered at the 8 a.m. hearing. Among them were whether the petitioners exhausted military and administrative procedures, whether they have standing to pursue the case, and whether the court has jurisdiction over prisoners held in Cuban territory leased to the U.S. government.
Indeed. As the court notes, since Guantanamo Naval Base is an extraterritorial US base in Cuban territory, so does the federal district court have the jurisdiction to hear this case?
And the answer is ... complicated. At best, a possible "maybe"
The Supreme Court has generally held that United States laws do not have extraterritorial application -- for example, see SALE v. HAITIAN CTRS. COUNCIL, INC., 509 U.S. 155 (1993). To be sure, that case was specifically about repatriating Haitians intercepted on the open seas, and as the court notes, it makes absolutely no sense for that specific law to be applied other than extraterritorially; however, there are several cases regarding extraterritoriality and the application of US law. The general position of the courts is that absent specific Congressional intent or statements or provisions in the law, US law cannot be applied extraterritorially, outside the territorial US.
Lower courts have also held that US district courts lack jurisdiction over civilians on military bases, in US v. Gatlin, out of the 2d Circuit Court of Appeals. (Note that Gatlin also contains copious citations to previous cases throughout the decision.) In fact, US civilians who commit crimes on military bases fall into what is technically "a jurisdictional gap". In general, the US position is that its military code is the only law applicable on its foreign military bases; however, the military code applies generally only to military personnel. Congress has never specifically authorized the application of the military code to civilians on extraterritorial US possessions, or indeed of most parts of the US code. As the language of Gatlin makes clear, "absent "clear evidence of congressional intent" to apply a statute extraterritorially, a statute applies only within the territorial United States." Oddly, Guantanamo Bay itself seems to be a specific exception to this; as cited in the selfsame Gatlin case, "... both United States citizens and aliens alike, charged with the commission of crimes on Guantanamo Bay [in Cuba], are prosecuted under United States laws." (citing, inter alia, 18 U.S.C. 7)" Logically, precedent relating to Guantanamo itself should indicate that habeas corpus would, in fact, apply -- although I strongly suspect that the current district court would and should dismiss the case for a different lack of jurisdiction; Guantanamo cases should probably arise in the 11th District, containing Florida. (Possibly a case could be brought in the Federal Circuit, the only one with nongeographic jurisdiction -- however, its cases do seem to be limited by type rather than location, and this would seem to fall far outside the Federal Circuit's kind of cases. It has absolutely no criminal jurisdiction ... although this isn't precisely criminal, is it?)
(Note that there's also a rather ... interesting time-bomb sitting quietly in Gatlin and a related case:
The fact that the 1790 Act delimited the jurisdiction of the federal courts to lands over which the United States exercised exclusive legislative jurisdiction "virtually guarantees" that the provision was not intended to apply to offenses committed in foreign territory. Bin Laden, 92 F. Supp. 2d at 209. [...] in a recent opinion involving the same jurisdictional provision at issue here, 18 U.S.C. 7(3), Judge Sand declined to apply the presumption against extraterritoriality. See United States v. Bin Laden, 92 F. Supp. 2d 189, 206 n.32 (S.D.N.Y. 2000). The presumption, Judge Sand reasoned, "was designed to apply to provisions that define offenses. When presented with the task of interpreting jurisdictional statutes such as Section 7(3), courts should simply employ the standard tools of statutory interpretation: analysis of text, structure and legislative history." Id. We respectfully disagree with Judge Sand. Although 7(3) is the immediate focus of our inquiry, the ultimate question here is whether a criminal statute--i.e., 18 U.S.C. 2243(a)--applies extraterritorially. The presumption against extraterritoriality plainly applies to criminal statutes (other than the Bowman variety, see supra note 5), so 2243(a) applies extraterritorially only if there is a clear manifestation of Congress's affirmative intent. [...] (In fact, notwithstanding his view that the presumption against extraterritoriality was inapplicable, Judge Sand himself concluded that 7(3) applies only to lands within the United States--and dismissed several counts of the indictment at issue on that basis. See 92 F. Supp. 2d at 204-16.)
In other words, we appear to be charging bin Laden and friends with crimes when our own courts have held we have little right to do so, in cases specifically referencing bin Laden and friends. Hmm. The Gatlin case has not, as far as I can determine, reached the Supreme Court. Oddly, neither has US v. bin Laden, part 1.)
HOWEVER (you knew there'd be one, right?), in US v. Corey (PDF file, Acrobat needed), the 2d Court of Appeals held that the US held primary jurisdiction over US nationals on a US base, and that a criminal conviction under the US code could be sustained. (Corey's conviction was in fact reversed for technical errors.) The court stated, in fact, "We see no reason to create a jurisdictional vacuum when a better reading of the statute supports jurisdiction." (p. 38) This despite the fact that several decisions have held that the courts lack jurisdiction, not just Gatlin and bin Laden.
And all of THAT said, the 11th Court of Appeals itself has said that US courts lack jurisdiction over foreign nationals at US bases abroad. (In fact, foreign nationals held on US bases lack constitutional rights of any sort, period.) In any event, this noted lack of sympathy for foreign nationals may also explain, in part, why the case wasn't brought there, where it almost certainly would not have been dismissed due to being brought in the wrong circuit. (NOTE: link via Lake Effect and USS Clueless, indirectly.)
In short, with the sole exception of the 2d Circuit Court of Appeals, courts have generally held that US laws apply to nobody extraterritorially, with the exception of US military personnel. (And, as noted, the odd exception of Guantanamo itself.) In theory, precedent should dictate that when these cases reach the Supreme Court -- and it's in the government's interest for Gatlin and bin Laden, at least, to get that far so that they can get a definitive decision, or specific legislation covering the "jurisdictional gap" -- the 2d Court decision should fall, given a relatively long line of decisions to the contrary. This, of course, is a brand new day, and the Court may feel that precedent should be damned, quite firmly.
So. Guantanamo. As I said when I started, the answer regarding the applicability of "habeas corpus" appears to be ... "maybe". Interestingly, the court-shopping done by Ramsay Clarke appears to have reason; if the district court -- which lies in the 2d District -- follows court of appeals precedent, as it generally should, then it should logically conclude that the US code applies in Guantanamo, and that it has jurisdiction to hear the case. THEREFORE, it necessarily would also conclude that the Bill of Rights, and therefore habeas corpus, also applies. (Despite our Lord High Minister of Injustice's best efforts, habeas corpus has not quite been suspended at the current time.)
On the other hand, they could follow established precedent from the other relevant cases and conclude that their own Court of Appeals decided in error, overrule them, and state that they lack specific jurisdiction. Said decision, if sustained by the Court of Appeals -- which, to be sure, is rather unlikely -- would carry with it either an explicit or implicit overrule of Corey, bring the circuits into harmony ... and possibly torpedo government cases against Gatlin and bin Laden.
OR they could look at case law regarding Guantanamo and state that while in general, US laws don't apply to extraterritorial locations, previous precedent has clearly established Guantanamo Bay as an exception to the rule. Therefore, US laws apply, dragging the Constitution in their wake, and therefore habeas corpus applies.
It strikes me that there is no unambiguously good result for the government from any decision. If the court denies jurisdiction, then it damages other cases which implicitly rest on the government's exercise of that jurisdiction. If it accepts jurisdiction, then US laws apply, restricting government conduct even more than the Geneva Convention.
Of course, I'm not a lawyer, so this could all be quite wrong. Generally, it somehow seems that when you read the flat language of the law and legal decisions, and try to follow exactly what it says, someone will tell you that you got it all wrong. So take all this for what it's worth.
UPDATE:, 3:49pm CST:
U.S. District Judge A. Howard Matz said he had "grave doubts" about his jurisdiction and gave federal prosecutors until Jan. 31 to file papers calling for dismissal of the petition on jurisdictional grounds. The judge said he will hold another hearing Feb. 14. Federal attorneys said they would file for dismissal of the case.
It will be fascinating to see which jurisdictional argument he chooses. I'm betting that he's simply going to say that it's the wrong region, which doesn't address the underlying legal issues at all. If he says that all district courts lack such jurisdiction, while it will be good for this case, as noted, it may pose strong problems for other cases later on, to say nothing of being an explicit overrule of his own Court of Appeals.
NOTE: the original link at top changed from the Chicago Sun-Times story to the LA Times story, which has better information, and the lead quote adjusted accordingly. First original paragraph also restated, since the lead quote contained the original question.
Posted by iain at January 22, 2002 12:59 PMComments