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Detainees unaswered questions { November 22 2002 }

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Friday, November 22, 2002

Lawyers, Clergy Who Challenged Detentions See Victory in Unanswered Questions


A legal challenge to the detention of 600 Afghan war prisoners held at the Guantanamo Bay Naval Base in Cuba was blocked Monday by the 9th U.S. 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 don’t have third-party standing in the case, because they do not have personal relationships with the detainees and have made no attempt to contact them. However, the court vacated a district judge’s finding that no U.S. court has jurisdiction over the detainees’ habeas claims. Coalition of Clergy v. Bush, No. 02-55367.

"The court didn’t reach the question of whether the detention is proper, and expressly left open the possibility that family members, or other parties that have a sufficient connection to a particular detainee, might have standing to seek habeas review," says Mark D. Agrast, chair of the ABA’s Individual Rights and Responsibilities Section. "What’s important is the court went out of its way not to attempt to answer questions that go to the merits of the case."

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

The 9th Circuit rejected the argument that the prisoners are 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 petitions on the behalf of some detainees.

"This hyperbolic argument fails because it lacks support in the record; in fact, the prisoners are not being held incommunicado," Judge Kim McLane Wardlaw wrote for the court. The opinion acknowledges that the detainees have not been allowed to meet with lawyers or file court petitions on their own behalf.

"We need not delineate the contours of the access requirement in these circumstances, however, in light of the coalition’s lack of a relationship with the detainees," the opinion states.

Stephen Yagman, a named plaintiff, says the group plans to petition the court for an en banc hearing, asking the court to reverse itself on the standing issue and to clarify the jurisdiction issue.

"We hope to persuade the panel to say explicitly, rather than elliptically, that [the district court] was incorrect about jurisdiction," Yagman says. "We’re also asking for [detainees’] names, so we can get in touch with them. But we’re not holding our breath," says Yagman, a Los Angeles civil rights lawyer.

Erwin Chemerinsky, a professor at the University of Southern California Law School, also worked on the case. He knows of no other case where a court has denied next-friend standing for lack of relationship when the detainee had no access to the courts.

"The government is violating the law, and it’s essential in a country that believes in a rule of law that the government follows the law," he says. "That’s what this lawsuit is all about."

The Department of Justice praised the opinion.

"The military has acted within its authority in detaining noncitizens captured in combat outside the United States," wrote Barbara Comstock, the agency’s director of public affairs, in a prepared statement. "The Justice Department will continue to support the actions of our military forces to lawfully detain those who would do our nation harm."

Next-friend standing is most commonly sought in environmental cases, says Michael D. Ramsey, a professor at the University of San Diego School of Law. To claim third-party standing in such cases, Ramsey says, individuals must prove that the acts in question affect them.

"You can’t just file a hypothetical case or object to something because you object to it in theory. You have to have an actual stake in the case," he says. "It seems to me this was a classic situation of people not really having a standing in the case."

However, Todd D. True, a staff attorney at Earthjustice, a Seattle nonprofit law firm, says the facts in this case are different from most environmental cases.

"The typical question is whether the members use or enjoy the environment that is going to be affected by some project," he says. "Those questions don’t really come up here."

©2002 ABA Journal

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