U.S. Court of Appeals Recognizes Guantánamo Detainees’ Right of Access to Court

In a sharp rebuke to the Executive Branch’s unprecedented, prolonged detention of foreign nationals at the U.S. Naval Base at Guantánamo Bay, Cuba, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled this week that U.S. courts have jurisdiction to hear detainees’ claims that their detention is unlawful. The case, Gherebi v. United States, was brought in February 2003 by Belaid Gherebi, on behalf of his brother, Falen Gherebi. Like many of the 660 some Guantánamo detainees, Falen has been held without charge and virtually cut off from the outside world for almost two years.

“The Gherebi court has made it clear to the Executive that it cannot simply create a legal vacuum where people picked up in Afghanistan and around the world are warehoused off-shore indefinitely, without any rights,” said Deborah Pearlstein, who directs the U.S. Law and Security Program at the Lawyers Committee for Human Rights.

While most of the detainees at Guantánamo were captured by U.S. or Northern Alliance troops near the Afghan battlefield, others were seized in countries as far from the war zone as Gambia, Zambia, and Bosnia. Because none of the detainees has been given a formal hearing to determine his status, it is unclear how many of them may be noncombatants picked up in error, or innocent civilians handed over to U.S. troops in exchange for monetary rewards.

Rejecting the Executive’s assertion of authority as “inconsistent with fundamental tenets of American jurisprudence and rais[ing] most serious concerns under international law,” the Ninth Circuit found that regardless of citizenship, detainees held by the United States on territory “under the sole jurisdiction and control of the United States” have a right to seek relief in a U.S. court. The court was particularly troubled by the Executive’s “grave and startling” acknowledgement during oral argument that the logic of “its position would be the same even if the claims were that it was engaging in acts of torture or . . . summarily executing the detainees.”

The Gherebi decision is in direct conflict with a March 2003 decision of the U.S. Court of Appeals for the District of Columbia Circuit, Odah v. United States. The court there endorsed the Executive’s position that because the Guantánamo detainees have never been within “sovereign” U.S. territory, the federal courts have no jurisdiction to rule on the legality of their detention. The Supreme Court has accepted the Odah case for review, and is expected to hear arguments on the issue next spring.

The United States has occupied the base at Guantánamo Bay, Cuba since 1903 under a lease with the Cuban government. Under the terms of a 1934 treaty, the lease can only be terminated with the consent of both the United States and Cuba.