Falen Gherebi v. George Walker Bush Donald H. Rumsfeld

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

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 *1281 during its operations in Afghanistan. The captured individuals were labeled…

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 1280. 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 , 70 S.Ct. 936 , 94 L.Ed. 1255 (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 , 70 S.Ct. 936 .

A straightforward reading of Johnson makes it clear that “sovereignty” is the touchstone, under current law, for the exercise of federal courts’…

352 F.3d 1278 Falen GHEREBI, Petitioner-Appellant, v. George Walker BUSH; Donald H. Rumsfeld, Respondents-Appellees. No. 03-55785. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 11, 2003, San Francisco, California. Filed December 18, 2003. COPYRIGHT MATERIAL OMITTED Stephen Yagman, Marion R. Yagman, Joseph Reichmann, Kathryn S. Bloomfield, Yagman & Yagman & Reichmann & Bloomfield, Venice, California, for Petitioner-Appellant. Theodore Olson, Solicitor General, Paul Clement, Deputy Solicitor General, Washington, DC, for Respondents-Appellees. Appeal from the United States District Court for the Central District of California; A. Howard Matz, District Judge, Presiding. D.C. No. CV-03-01267-AHM. Before: REINHARDT, GRABER, Circuit Judges, and SHADUR, Senior District Judge. * OPINION REINHARDT, Circuit Judge. I. BACKGROUND 1 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…