Author Archives: Michael Froomkin

Supreme Court Takes First Case on Guantánamo Detainees. The Supreme Court granted cert in and consolidated two cases relating to the Guantánamo detainees. Both raise purely jurisdictional issues.

In one case, Rasul v. Bush (No. 03-334) three detainees' parents sought writs of habeas corpus. Here's the cert petition.

In the other case, Al Odah v. United States (No. 03-343) (cert petition), relatives of twelve detainees sought to challenge the legality of the detention under the Alien Tort Statute, 28 USC § 1350, the Administrative Procedures Act (APA), and the 5th Amendment. They sought a declaration that the detention is arbitrary and capricious, and that the detainees should have an opportunity to speak to a lawyer.

The D.C. Circuit ruled in both cases at once, holding that “the courts are not open” to the detainees, 321 F.3d 1134, because Guantánamo is outside the sovereignty of the United States, and our courts thus lack jurisdiction to hear their claims. The court opinion, authored by Judge Randolph, comes with an interesting concurrence by … Judge Randolph, in which he really goes to town, not only rejecting the dominant reading of the Alien Tort Statute and offering one that effectively neuters it, but also finding that the APA provides no relief for the plaintiffs.

While I disagree vehemently with the view that there is no federal habeas jurisdiction, nor jurisdiction via the Alien Tort Act, I think at first glance that I do agree with Judge Randolph about the APA claims. The APA explicitly does not apply to the military.

The path of least resistance for the Supreme Court is to do what the lower courts did and follow Johnson v. Eisentrager, 339 U.S. 763 . I explained in an earlier post how Application of Yamashita provides an alternate approach under which the courts would have jurisdiction to hear this claim.

Let's hope that the Supreme Court has the courage to step up to the plate on this one.

If it doesn't, it becomes our collective moral obligation to demand that Congress extend its undoubted power to extend the jurisdiction of the federal courts to Guantánamo. Not that I'll hold my breath, you understand.