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July 30, 2002


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.

In the Rasul case, Respondents moved to dismiss the First Amended Petition for Writ of Habeas Corpus on March 18, 2002. This motion was fully briefed on April 29, 2002. On May 1, 2002, the Odah case was filed and Plaintiffs designated it as related to the Rasul matter. Thus, Odah was assigned to this Court. Plaintiffs in Odah moved for a preliminary injunction at the time they filed their suit. Instead of filing a memorandum in opposition to the motion for preliminary injunction, Defendants in the Odah case moved to dismiss the action. That motion was fully briefed on June 14, 2002.*fn4

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.


A. Rasul v. Bush

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.

B. Odah v. United States

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


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 ...

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