Terrorism

• Author: International Law Group

[The following case concerns the authority of the Executive Branch to hold uncharged foreign individuals indefinitely in territory under the "complete jurisdiction and control" of the U.S. The Ninth Circuit, immediately after publishing the opinion, put the mandate on hold until the U.S. Supreme Court decides Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), cert. granted, 2003 WL 22070725 (Nov. 10, 2003). See 2003 International Law Update 56.

After September 11, 2001, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States ..." Authorization for Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001). Pursuant to this congressional authorization, U.S. forces entered Afghanistan to pursue the Taliban government and the terrorist al Qaeda network.

Beginning in early 2002, U.S. forces began transferring individuals captured in Afghanistan to the Guantanamo Bay naval base, located on the island of Cuba. The government has labeled these individuals "enemy combatants" and so far has not afforded them a chance to challenge the legality of their detention.

Belaid Gherebi filed a habeas corpus petition on behalf of his brother Faren, alleging that his detention at Guantanamo Bay violated the U.S. Constitution and the Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. The district court eventually dismissed Gherebi's case for lack of jurisdiction on the theory that Guantanamo Bay naval base does not lie within sovereign U.S. territory. Gherebi appealed. The U.S. Court of Appeals for the Ninth Circuit reverses and remands.

The government relies on Johnson v. Eisentrager, 339 U.S. 763 (1950), holding that no U.S. district court has jurisdiction over the Guantanamo detainees. Johnson declined jurisdiction over a habeas petition by a German prisoner in Landsberg prison, Germany, after a trial and sentence received by a U.S. Military Commission in Nanking, China, for offenses committed in China after the end of World War II. The Johnson court noted that the petitioners were "alien enemies" and detained outside the territory over which the U.S. has control.

Here, the government...