Lawyers Committee Applauds U.S. Supreme Court Decision

NEW YORK - The Supreme Court decided today to review Al Odah v. United States and Rasul v. Bush—consolidated cases that will test the assertion that some 680 foreign nationals held at Guantanamo Bay, Cuba are, as one government official put it, in “the legal equivalent of outer space.”

“The Supreme Court 's decision provides an important opportunity to apply legal standards to a place the Bush Administration argues operates outside the rule of law,” said Elisa Massimino, Director of the Lawyers Committee’s Washington, D.C. office. “The Justices should use these cases to assert that the Guantanamo detainees have legal rights, and a means to seek enforcement of those rights."

Despite widespread international protest, the U.S. government has held foreign nationals—from 40 different countries—at Guantanamo since early 2002. The detainees have not been afforded a hearing to determine their participation in any conflict, or their guilt of any crime. The choice of location—Cuban territory on long-term lease to the United States—appears designed to prevent detainees from challenging their detention in U.S. courts, a strategy that has proved successful so far.

At issue before the Supreme Court is a sweeping decision by the D.C. Circuit Court of Appeals—which held that non-citizens detained in U.S. military custody outside U.S. sovereign territory may not petition U.S. courts for judicial review of their detention.

The D.C. Circuit’s analysis turns on technical considerations of “sovereignty” that would relegate the detainees to a legal black hole.

The D.C. Circuit held that because Guantanamo is not formally U.S. sovereign territory, the detainees do not have the “privilege of litigation” before U.S. courts. This is despite the fact that U.S. courts are the only courts to which the detainees can appeal.

A lease signed by the United States and Cuba in 1903 grants the U.S. government “complete jurisdiction and control” over Guantanamo, authority which it has exercised for more than a century. Indeed, the U.S. Navy has described Guantanamo as “a Naval reservation, which, for all practical purposes, is American territory. Under the [lease] agreement, the United States has for approximately [one hundred] years exercised the essential elements of sovereignty, without actually owning it.”

United States law governs life at Guantanamo. Anyone accused of a crime at Guantanamo is subject to prosecution and trial in U.S. courts; it is irrelevant whether the accused is an American citizen or a citizen of another country.

The D.C. Circuit’s decision abdicates judicial responsibility for reviewing the legality of executive branch action.

The D.C. Circuit would allow the executive to bypass all judicial oversight of decisions to hold non-citizens in U.S. military custody. By devising a rule that depends on the physical location of the detainees, the court would allow the executive to sideline the judiciary by opting to arrest and imprison non-citizens outside U.S. sovereign territory. Indeed, under the D.C. Circuit’s decision, the executive would be free to lease other territory abroad for the same purpose—the indefinite detention of non-citizens outside the constraints of domestic and international law.

The D.C. Circuit’s decision places the United States in conflict with other democracies.

Courts in other democratic nations have firmly rejected the notion that governments may sidestep judicial review by detaining individuals outside their borders. The European Court of Human Rights has made clear, for example, that “a state cannot insulate itself from Convention scrutiny by operating beyond state frontiers.”

British courts have long held that “[h]e who is subject to British law is entitled to its protection,” a principle that applies to every person, whether British citizen or not. Indeed, in commenting on the fate of one of the British detainees (Feroz Ali Abassi), the British Court of Appeal emphasized, “What appears to us to be objectionable is that Mr. Abassi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.” The judges on the British appeals court expressed the hope that the “anxiety [they] have expressed” would be drawn to the attention of the U.S. Supreme Court.

Today's Supreme Court decision to hear these cases is the first step in addressing those concerns. The Lawyers Committee welcomes the Court's decision, and hopes it reflects the Court's desire to apply the rule of law to the detatinees at Guantanamo.