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, http://www.abanet.org/journal/redesign/n22guan.html).
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 ).
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
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.).
- “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 ).
“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).