Wednesday, October 3, 2007

Habeas corpus petition vs. Bush

Coalition of Clergy vs. Bush, U.S. 9th Circuit Court of Appeals, Case No. 02-55365, November 18, 2002: Habeas Corpus Petition on Behalf of the Taliban Detainees in Cuba -- The Doctrine of Next-Friend Standing and Third-Party Standing.


Manuel J. Laserna Jr.


A legal challenge to the detention of 600 Afghan war prisoners held at the Guatanamo Naval Base in Cuba was blocked on November 18, 2002 by the 9th US Circuit Court of Appeals. But the opinion may be a victory of sorts for the clergy, professors and attorneys who filed the case. The San Francisco-based Court said the plaintiffs did not have “third-party” standing in the case, because they did not have personal relationships with the detainees and had made no attempts to contact them. However, the Court vacated a District Judge’s finding that no U.S. court has jurisdiction over the detainees’ habeas corpus. (Stephanie Francis Cahill, “Lawyers, Clergy Who Challenged Detentions See Victory In Unanswered Questions, ABA Journal,

The plaintiffs argued that the US government should provide lawyers for the prisoners and bring them before a US court. They asked the government to identify the prisoners and define the charges against them. The plaintiffs said the prisoners were being held incommunicado, which clears the way for their next-friend standing. They cited a 1990 US Supreme Court opinion holding that individuals unconnected to detainees may claim “next-friend” standing if the detainees were unavailable due to mental incompetence or inaccessibility to court. (id., citing Whitmore v. Arkansas, 495 U.S. 149, 161-64 [1990]).

The 9th Circuit rejected the arguments that the prisoners were being held incommunicado, noting that International Red Cross members and diplomats from their home countries have visited them and that family members have filed habeas corpus petitions on the behalf of some detainees. The opinion acknowledged, though, that the detainees have not been allowed to meet with lawyers or file court petitions on their own behalf. (id.).

The Case Before the US District Court

The Coalition of Clergy, Lawyers and Professors petitioned for a writ of habeas corpus on behalf of persons captured in Afghanistan by the Armed Forces of the United States and now held at Guatanamo Naval Base, Cuba, in a secure detention facility known as Camp X-Ray. The Coalition alleged that the detainees have been deprived of their liberty without due process of law, have not been informed of the nature and cause of the accusations against them or afforded the assistance of counsel, and are being held by the US government in violation of the US Constitution and the Third Geneva Convention. (Coalition of Clergy, Lawyers and Professors, et. al. vs. Pres. George W. Bush, et. al., U.S. Circuit Court of Appeals for the Ninth Circuit, Case No. 02-55365, November 18, 2002, pp. 1-2).

The US District Court for the Central District of California dismissed the petition on the grounds that: (1) the Coalition lacked next-friend standing to assert claims on behalf of the detainees; (2) the District Court itself lacked jurisdiction to issue the writ; and (3) no Federal Court could have jurisdiction over the writ, so there was no basis to transfer the petition to another Federal District Court. (Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036, 1039 [C.D. Cal. 2002]).

The Coalition appealed the decision of the US District Court for the Central District of California to the US 9th Circuit Court of Appeals based in San Francisco, California. Oral arguments were held before the US 9th Circuit Court of Appeals on July 8, 2002 and the Court promulgated its decision on November 18, 2002.

The Circuit Court agreed with the District Court that the Coalition lacked next-friend and third-party standing to bring a habeas petition on behalf of the detainees but reversed and vacated the portion of the decision of the District Court that purported to adjudicate the rights of the detainees or persons on their behalf to petition other US courts. It reversed the ruling of the District Court which held that neither the District Court or any other US Federal Court may properly entertain the petition. (id., p. 6, citing 28 U.S.C. 2241; 28 U.S.C. 1291; Jimenez v. Rice, 276 F. 3d 478, 481 [9th Cir. 2001]; Edelbacher v. Calderon, 160 F.3d 582, 583 [9th Cir. 1998])).

The Decision of the US 9th Circuit Court of Appeals

1. Background

The Court noted that , in an event seared upon the soul of America, members of the Al Qaeda terrorist group engaged in a quick series of attacks upon the United States on September 11, 2001, killing thousands of civilians in New York, Northern Virginia, and Pennsylvania. The US President George W. Bush and the US Congress united in their commitment of the Armed Forces of the United States to take military action against the Al Qaeda terrorists and those who would harbor them, like the Taliban government of Afghanistan, to prevent future acts of international terrorism. (See: Authorization for Use of Military Force, Public Law No. 107-40, 115 Stat. 224 [Sept. 18, 2001], which authorized the US 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, 2002, or harbored such organizations or persons”). (Coalition of Clergy, Lawyers and Professors, et. al. vs. Pres. George W. Bush, et. al., U.S. Circuit Court of Appeals for the Ninth Circuit, Case No. 02-55365, November 18, 2002, pp. 5-7).

The United States and its allies successfully removed the Taliban from power and captured, killed or drove to flight some of the more notorious members of Al Qaeda and the Taliban. Kabul, the capital of Afghanistan, was taken on November13, 2001, and thousands of Taliban and Al Qaeda combatants were eventually captured or surrendered. Among these captives, the detainees deemed most dangerous by the US military were transferred to the US Naval base at Guatanamo, Cuba. (id., p. 7).

The Court noted that the detainees were being held at the naval base in a secure facility known as Camp X-Ray. They have been visited by members of the International Red Cross and diplomats from their home countries. Although the detainees have not been allowed to meet with lawyers, they had had some opportunity to write to friends and family members. (id.).

  1. “Next-Friend Standing”

The federal habeas statute provides that the “application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” (id., citing 28 U.S.C. 2242, as amended by the US Congress in 1948). Federal courts have long recognized that “under appropriate circumstances, habeas petitions could be brought by third parties, such as family members or agents, on behalf of a prisoner”. This is known as next-friend standing. (id., citing Whitmore v. Arkansas, 495 U.S. 149, 161-64 [1990]).

“Most frequently, ‘next friends’ appear in court on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves. As early as the 17th century, the English Habeas Corpus Act of 1679 authorized complaints to be filed by ‘any one on…behalf’ of detained persons, and in 1704 the House of Lords resolved “that every Englishman, who is imprisoned by any authority whatsoever, has an undoubted right, by his agents, or friends, to apply for, and obtain a Writ of Habeas Corpus, in order to procure his liberty in due course of law”. Some early decisions in this country interpreted ambiguous provisions of the federal habeas corpus statute to allow ‘next friend’ standing in connection with petitions for writs of habeas corpus, and Congress eventually codified the doctrine explicitly in 1948.” (Whitmore v. Arkansas, 495 U.S. at 162-63).

The Court noted, however, that an examination of habeas decisions in the United States showed that “there was a significant pre-existing relationship between the prisoner and the putative next friend”, e.g. a wife of an enlisted soldier was granted next-friend habeas standing (In re Ferrens, 8 F. Cas. 1158 [S.D.N.Y. 1869]); an attorney of a detainee (United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 [C.C.S.D.N.Y. 1908]); a brother-in-law on behalf of a minor (Ex parte Dostal, 243 F. 664, 668 [N.D. Ohio 1917]); a sister on behalf of a prisoner in Korea (United States ex. Rel. Toth v. Quarles, 350 U.S. 11, 13 no. 3 [1955]); a mother on behalf of a prisoner (Gilmore v. Utah, 429 U.S. 1012, 1013-14 [1976]; Evans v. Bennet, 440 U.S. 1301 [1979]; Hamilton v. Texas, 485 U.S. 1042 [1988]; Demosthenes v. Baal, 495 U.S. 731, 735 [1990]; Vargas v. Lambert, 296 F.3d 1161, 1163 [9th Cir. 1998]; Hamdi v. Rumsfeld, 296 F.3d 281 [4th Cir. 2002]); an authorized representative of the prisoner (Collins v. Traeger, 27 F.2d 842, 843 [9th Cir. 1928]).

The Court noted the limitations set by US jurisprudence to the doctrine of next-friend standing. It cited the case of United States ex rel. Bryant v. Houston, 273 F. 915, 916 [2d Cir. 1921], which held:

“It has never been understood that, at common law, authority from a person unlawfully imprisoned or deprived of his liberty was necessary to warrant the issuing of a habeas corpus, to inquire into the cause of his detention…But the complaint must set forth some reason or explanation satisfactory to the court showing why the detained person does not sign and verify the complaint and who ‘the next friend’ is. It was not intended that the writ of habeas corpus should be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next friends”.

(See also: Rosenberg v. United States, 346 U.S. 273, 291-92 [1953}, denying a stranger the right to being a petition on behalf of the Rosenbergs, because there was no authorization).

The US 9th Circuit Court of Appeals noted the limitation set by the US Supreme Court in Whitmore v. Arkansas, supra:

“’Next friend’ standing is by no means granted automatically to whomsoever seeks to pursue an action on behalf of another. Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for ‘next friend’ standing. Firsts, a ‘next friend’ must provide an adequate explanation -- such as inaccessibility, mental incompetence, or other disability -- why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest. The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” (Whitmore v. Arkansas, 494 U.S. at 163-64. See also: Massie ex. Rel. Kroll v. Woodford, 244 F.3d 1192, 1194 [9th Cir. 2001]).

a. Detainees’ Inability to Litigate Own Cause

The US 9th Circuit Court of Appeals held that the detainees were “not being held incommunicado” (pp. 13-14). The detainees “have been visited by the members of the International Red Cross and diplomats from their home countries, and have had limited opportunities to write friends and family members”. (id.). Family members of the some of the detainees and diplomats from several countries, including Pakistan, Kuwait, Australia and the United Kingdom, “have made inquiries into the status of the detainees and sought their release” . (id., citing Rasul v. Bush, 215 F. Supp. 2d 55, 57 [D. 2002]; Hamdi II, 296 F. 3d at 279). The Court quoted with approval the statement of the District Court that “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”. (id., citing Rasul, 215 F. Supp. 2d at 56-57).

Although the detainees were “not being held incommunicado”, the Court noted that the detainees “were not able to meet with lawyers, and have been denied access to file petitions in United States courts on their own behalf” and that, as conceded by the Government during the oral arguments, “from a practical point of view the detainees cannot be said to have unimpeded or free access to court” (p. 15, citing Coalition of Clergy v. Bush, 189 F. Supp. 2d at 1042).

The Court did not find it necessary to “delineate the contours of the access requirement in these circumstances…in light of the Coalition’s lack of (significant) relationship with the detainees”. (id.).

b. The Coalition Lacks Next-Friend Standing

The Court held that the Coalition had failed to meet the two-pronged Whitmore test which required the putative next friend to show: (1) that the petitioner was unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) that the next friend had some significant relationship with, and was truly dedicated to the best interests of, the petitioner. (pp. 12-16, citing Whitmore v. Arkansas, 495 U.S. 163-64; Massie ex. Rel. Kroll v. Woodford, 244 F.3d 1192, 1194 [9th Cir. 2001]; United States v. Ken Int’l Co., 897 F. Supp. 462, 465 [D. New. 1995]; Hamdi v. Rumsfeld, 294 F. 3d 598 [4th Cir. 2002]). The Court held that the Coalition had “not demonstrated any relationship with the detainees”, that the record was “devoid of any effort to even communicate with the detainees (or sought authorization from the detainees)”, and that “at best, the Coalition can only assert a generalized interest in constitutional governance…which is insufficient to support next-friend standing”. (pp. 17-19).

3. Third-Party Standing

The general rule is that “a litigant may assert only his own legal rights and interests and cannot rest a claim to relief on the legal rights or interests of third parties”. (Singleton v. Wuff, 428 U.S. 106, 113-114 [1976]; Warth, 422 U.S. at 499). An exception to the general rule is Powers v. Ohio, 499 U.S. 400, 410-11 (1991), which upheld a litigant’s third-party standing to raise equal protection claims of jurors peremptorily challenged due to race:

“We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: (1) the litigant must have suffered an ‘injury in fact’, thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; (2) the litigant must have a close relation to the third party; and (3) there must exist some hindrance to the third party’s ability to protect his or her own interests”.

(See also: Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 [1992]; Shaw v. Hahn, 56 F.3d 1128, 1130 n. 3 [9th Cir. 1995]).

The Court held that the Coalition had failed to meet all of the aforementioned three requirements to support its claim for third-party standing and that the Coalition had addressed only the third requirement, i.e., “hindrance to the third party”. The Court held that the Coalition had failed:

“…to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequences presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.” (p 20, citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485-86 [1982])).

4. Jurisdiction

The US 9th Circuit Court of Appeals declined to rule on the remaining questions addressed by the District Court: (1) whether the District Court lacked jurisdiction because no custodian is within its territorial jurisdiction; and (2) whether the US Supreme Court’s decision in Johnson v. Eisentranger, 339 U.S. 763 (1950) would preclude any District Court from asserting jurisdiction over the petition. It vacated the portions of the opinion of the District Court which ruled on the foregoing issues.

“…Such determinations purport to adjudicate the habeas rights of individual detainees, when the Coalition itself lacks the standing to bring the petition and they were not before the court. The Supreme Court has stated that federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation. Such a concern cuts to the heart of the case-and-controversy requirement of Article III (of the US Constitution). Courts should not adjudicate rights unnecessarily; the real parties in interest in an adversarial system as usually the best proponents of their own rights…Well-established principles of judicial restraint favor resolving this appeal on the narrow standing ground. The Supreme Court has warned, where litigants lack standing, that ‘for a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has not jurisdiction to do so is, by very definition, for a court to act ultra vires”. (at pp. 21-22, citing Singleton, 428 U.S. 113-14).

5. Conclusion

The US 9th Circuit Court of Appeals clarified that “the question before us is not the scope of the rights and privileges of the detainees themselves under either our Constitution or other international law agreements”. (p. 22). It considered “only the rights of the Coalition to assert standing on behalf of the detainees and to seek habeas review of their detention”. It vacated, for lack of jurisdiction on the part of the District Court, the ruling of the District Court that “there is no United States court that may entertain any of the habeas claims of any of the detainees…without regard for their particular circumstances, whether they petitioned individually or through a true next friend on their behalf”. (id.).

Thus, the primordial issue of whether US courts may assume jurisdiction over future habeas petitions that may be filed by the detainees individually (who are confined in a US facility in Cuba) or through their true next friends against the US government or its officials remain open. At least, the US 9th Circuit Court of Appeals did not prematurely adjudicate the said issue in Coalition of Clergy v. Bush, supra. The said issue will surely reach the US Supreme Court in the near future.