The opinion of the court was delivered by: Kollar-kotelly, District Judge.
Presently before the Court are two cases involving the federal
government's detention of certain individuals at the United
States Naval Base at Guantanamo Bay, Cuba. The question
presented to the Court by these two cases is whether aliens held
outside the sovereign territory of the United States can use the
courts of the United States to pursue claims brought under the
United States Constitution. The Court answers that question in
the negative and finds that it is without jurisdiction to
consider the merits of these two cases. Additionally, as the
Court finds that no court would have jurisdiction to hear these
actions, the Court shall dismiss both suits with prejudice.
Throughout their pleadings and at oral argument, Petitioners
and Plaintiffs contend that unless the Court assumes
jurisdiction over their suits, they will be left without any
rights and thereby be held incommunicado. In response to this
admittedly serious concern, the government at oral argument,
conceded that "there's a body of international law that governs
the rights of people who are seized during the course of
combative activities." Transcript of Motion Hearing, June 26,
2002 ("Tr.") at 92. It is the government's position that "the
scope of those rights are for the military and political
branches to determine — and certainly that reflects the idea that
other countries would play a role in that process." Id. at 91.
Therefore, the government recognizes that these aliens
fall within the protections of certain provisions of
international law and that diplomatic channels remain an ongoing
and viable means to address the claims raised by these
aliens.*fn1 While these two cases provide no opportunity for
the Court to address these issues, the Court would point out
that the notion that these aliens could be held incommunicado
from the rest of the world would appear to be inaccurate.
After reviewing the extensive briefings in these cases,
considering the oral arguments of the parties and their oral
responses to the Court's questions, and reflecting on the
relevant case law, the Court shall grant the government's motion
to dismiss in both cases on the ground that the Court is without
jurisdiction to entertain these claims.*fn2
Petitioners in Rasul v. Bush, Civil Action No. 02-299, filed
their case on February 19, 2002, and have styled their action as
a petition for writ of habeas corpus. Petitioner Shafiq Rasul
and Asif Iqbal are citizens of the United Kingdom and are
presently held in Respondents' custody at the United States
Naval Base at Guantanamo Bay, Cuba. Am. Pet. ¶¶ 10, 14.
Petitioner David Hicks is an Australian citizen who is also
detained by Respondents at the military base at Guantanamo Bay.
Id. ¶ 5. Also included in the Petition are Skina Bibi, mother
of Shafiq Rasul, Mohammed Iqbal, father of Asif Iqbal, and Terry
Hicks, father of David Hicks. Petitioners request, inter alia,
that this Court "[o]rder the detained petitioners released from
respondents' unlawful custody," "[o]rder respondents to allow
counsel to meet and confer with the detained petitioners, in
private and unmonitored attorney-client conversations," and
"[o]rder respondents to cease all interrogations of the detained
petitioners, direct or indirect, while this litigation is
pending." Am. Pet., Prayer for Relief, ¶¶ 4-6.
Plaintiffs in Odah v. United States, Civil Action No.
02-828, filed their action on May 1, 2002. The Odah case
involves the detention of twelve Kuwaiti nationals who are
currently being held in the custody of the United States at the
United States Naval Base at Guantanamo Bay, Cuba. Am. Compl. at
4. The action is concurrently brought by twelve of their family
members who join the suit and speak on behalf of the individuals
in United States custody. Id. Unlike Petitioners in Rasul,
the Odah Plaintiffs disclaim that their suit seeks release
from confinement. Rather, Plaintiffs in Odah ask this Court to
enter a preliminary and permanent injunction prohibiting the
government from refusing to allow the Kuwaiti nationals to "meet
with their families," "be informed of the charges, if any,
against them," "designate and consult with counsel of their
choice," and "have access to the courts or some other impartial
tribunal." Id. ¶ 40.*fn3 Plaintiffs' Amended Complaint
contains three counts. First, Plaintiffs contend that
Defendants' conduct denies the twelve Kuwaiti nationals due
process in violation of the Fifth Amendment to the Constitution.
Id. ¶ 37. Second, Plaintiffs argue that Defendants' actions
violate the Alien Tort Claims Act, 28 U.S.C. § 1350. Id. ¶ 38.
Lastly, Plaintiffs allege that Defendants' conduct constitutes
arbitrary, unlawful, and unconstitutional behavior in violation
of the Administrative Procedure Act, 5 U.S.C. § 555, 702, 706.
Id. ¶ 39.
At the time the Court received the motion to dismiss in the
Odah matter, it became obvious to the Court that the
government was moving to dismiss both cases primarily on
jurisdictional grounds. Accordingly, the Court found it
appropriate to make a threshold ruling on the jurisdictional
question in both cases before conducting any further
proceedings. Mindful of the importance of these suits, which
raise concerns about the actions of the Executive Branch, the
Court heard oral argument on the government's motion to dismiss
in both cases on June 26, 2002.
III. FACTUAL BACKGROUND*fn5
Little is known about Petitioner David Hicks except that he
was allegedly living in Afghanistan at the time of his seizure
by the United States Government. Am. Pet. ¶ 22. As for
Petitioner Rasul, in the summer of 2001, he allegedly took a
hiatus from studying for his computer engineering degree to
travel. Id. ¶ 24. Allegedly, Petitioner Rasul's brother
convinced him to move to Pakistan "to visit relatives and
explore his culture." Id. Petitioner Rasul left the United
Kingdom after September 11, 2001, and allegedly traveled to
Pakistan solely to attempt to continue his education at less
expense than it would cost to take similar courses in the United
Kingdom. Id. Petitioner Rasul allegedly stayed with an Aunt in
Lahore, Pakistan before engaging in further travel within that
country. Id. Allegedly, forces fighting against the United
States captured and kidnapped Petitioner Rasul after he left
Lahore. Id.
As for Petitioner Iqbal, it is alleged that in July of 2001,
his family arranged for him to marry a woman living in the same
village in Pakistan as Petitioner Iqbal's father. Id. ¶ 23.
After September 11, 2001, Petitioner Iqbal left the United
Kingdom and allegedly traveled to Pakistan solely for the
purpose of getting married. Id. In early October of 2001,
shortly before the marriage, Petitioner Iqbal's father allegedly
allowed Petitioner Iqbal to leave the village briefly. Id.
After leaving the village, forces working in opposition to
the United States allegedly captured Petitioner Iqbal. Id.
Petitioners Rasul, Iqbal, and Hicks were picked up in a region
of the world where the United States is actively engaged in
military hostilities authorized by a Joint Resolution of the
United States Congress, passed on September, 18, 2001, in the
wake of the September 11, 2001, terrorist attacks. The Joint
Resolution authorizes 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 that occurred on September 11,
2001, or harbored such organizations or persons, in
order to prevent any future acts of international
terrorism against the United States by such nations,
organizations or persons.
Authorization for Use of Military Force, Pub.L. No. 107-40, § 2,
115 Stat. 224 (2001) (cited in Am. Pet. ¶ 25). In the course of
the military campaign authorized by the Joint Resolution, the
United States attacked the Taliban, the ruling government of
Afghanistan. Am. Pet. ¶ 25. While seeking to overthrow the
Taliban, the United States provided military assistance to the
Northern Alliance, "a loosely knit coalition of Afghani and
other military groups opposed to the Taliban Government." Id.
¶ 26.
The Northern Alliance captured Petitioner David Hicks in
Afghanistan and transferred custody of him to the United States
on December 17, 2001. Id. ¶ 27. The precise circumstances
surrounding Petitioner Rasul's and Petitioner Iqbal's capture
are unknown. However, they appear to have been transferred to
United States control in early December of 2001. Id. ¶ 28.
It is alleged in the Amended Petition that at no time did any
of the Petitioners in United States custody voluntarily join any
terrorist force. Id. ¶ 30.*fn6 Additionally, if any of the
Petitioners in United States custody "ever took up arms in the
Afghani struggle, it was only on the approach of the enemy, when
they spontaneously took up arms to resist the invading forces,
without having had time to form themselves into regular armed
units, and carrying their arms openly and respecting all laws
and customs of war." Id. Additionally, it is alleged in the
Amended Petition that if Petitioners Rasul, Iqbal, and David
Hicks were in Afghanistan prior to being captured, "it was in
order to facilitate humanitarian assistance to the Afghani
people." Id. ¶ 31. Furthermore, these Petitioners allegedly
"have taken no step that was not fully protected as their free
exercise of their religious and personal beliefs." Id.
According to the Amended Complaint, none of those held in
United States custody are, or have ever been, a combatant or
belligerent against the United States, or a supporter of the
Taliban or any terrorist organization. Id. ¶ 15. Villagers
seeking bounties or other promised financial rewards allegedly
seized the twelve Kuwaiti Plaintiffs against their will in
Afghanistan or Pakistan. Id. ¶ 16. Subsequently these twelve
Plaintiffs were transferred into the custody of the United
States. Id. At various points in time, beginning in January of
2002, these twelve Plaintiffs were transferred to Guantanamo
Bay. Id. ¶¶ 19-21.*fn7
IV. LEGAL STANDARD DISTRICT COURTS USE IN EVALUATING MOTIONS
TO DISMISS UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1)
In both matters before the Court, the government has moved to
dismiss on jurisdictional grounds. Before a federal court can
hear a case, it must ascertain that it has jurisdiction over the
underlying subject matter of the action. Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89
L.Ed.2d 501 (1986) ("Federal courts are not courts of general
jurisdiction; they have only the power that ...