The same judge who isn't willing to rubber-stamp the government's efforts to extricate itself from the Microsoft anti-trust case was perfectly willing Wednesday to rubber-stamp the government's position when it comes to the legal rights of the Guantanamo Bay detainees.
It's another important victory for the Administration in its legal war on terror and another sign that most federal judges in these tense times are not eager to challenge the President's authority to prosecute the war.
In a sweeping ruling that probably exceeded the highest hopes of government attorneys — the Justice Department was so delighted with the result it distributed the decision to reporters before it hit the newswires — U.S. District Judge Colleen Kollar-Kotelly ruled that federal courts have no jurisdiction to hear claims brought by the Afghan war detainees currently held by U.S. troops at Guantamano Bay, Cuba. And not only did the judge reject the specific claims before her, she also dismissed the detainee cases with prejudice, finding that "no court would have jurisdiction to hear these cases."
It will be virtually impossible now for similar claims to succeed in any court in this country. If the detainees are going to get help now, that help will have to come from international sources — either from diplomats in their own countries or from the usual hodgepodge of relief agencies relying upon international law and norms.
In other words, if the U.S. government is going to give any or all of these detainees a break, it's going to be a purely voluntary move motivated out of some sense of political or military self-interest. Kollar-Kotelly's ruling virtually precludes the possibility that the administration now may be legally required to go easy on the detainees or even to treat them as typical criminal suspects.
So how is it that a judge gets to make a ruling in which she declares that she has no authority to make a ruling? A few months ago, family members and friends of several of the approximately 600 Gitmo detainees filed habeas corpus petitions with Kollar-Kotelly essentially begging the judge to grant extraordinary relief. The legal system is set up, you should know, to give people at least an opportunity to get their case before a judge even before the judge agrees to accept jurisdiction over the case. That's what happened here. The judge agreed to make a "threshold ruling on the jurisdictional question before conducting any further proceedings" and it's that threshold ruling that went entirely the government's way.
The detainees argued that the court should take jurisdiction over their claims because no other court would or could. They argued that they ought to be released from what they consider to be "unlawful custody" or at least given the opportunity to "allow counsel to meet and confer" with them "in private and unmonitored attorney-client conversations." They also asked the court to order the government to "cease all interrogations" while the case was pending. The government countered by arguing that Kollar-Kotelly couldn't get to the merits of the detainees' claims because she could not take jurisdiction over the case. Since the detainees all are "aliens," government attorneys argued, and since they aren't being held on U.S. soil, they are simply beyond the control of domestic, civilian courts.
In buying the government's arguments in full, the judge first noted the critical legal difference between U.S. citizens and aliens. Citing Supreme Court precedent from just after World War II, Kollar-Kotelly ruled that the law "broadly applies to prevent aliens detained outside the sovereign territory of the United States from invoking a petition for a writ of habeas corpus."
The judge then went on to find that Guantanamo Bay itself was not within the sovereign territory of the United States because the government "merely leases an area of land for use as a naval base." And she also noted that, unlike other Gitmo detainees who in the past had availed themselves of the jurisdiction of the federal courts, the current detainees "have no desire to enter the United States" and thus are not currently situated as migrants seeking asylum or other immigration status.
The ruling should not affect the status of Jose Padilla or Yasser Esam Hamdi, two American citizens who are currently being held incommunicado in military lockdown on U.S. soil. Padilla and Hamdi have been designated by the Administration as "enemy combatants" and the issue of whether federal courts may second-guess that designation is currently before a federal appeals court in Virginia. Even the government will find it hard to compare the legal status of the detainees — aliens detained abroad under Kollar-Kotelly's ruling — with Padilla and Hamdi — citizens detained at home. Still, it's probably a little unsettling to those fighting the legal battle on behalf of Hamdi and Padilla that a judge known for standing up to the government would so clearly and completely get with the Administration's program.
She did it in a low-profile way, too. The detainee ruling is long on precedent and short on legal or political or even personal philosophy. Nowhere in its 34 pages did Kollar-Kotelly offer any opinion on the wisdom of the government's position or upon the effect her ruling will have on the detainees themselves.
Indeed, the judge seemed to go out of her way to avoid offering anything other than pure legal analysis in coming to her stark conclusion. The only exception was a short phrase on the last page of the decision suggesting that "this opinion, too, should not be read as stating that these aliens do not have some form of rights under international law." That's not much of a lifeline to the Gitmo detainees but it's music to the ears of the president and the secretary of defense.
By Andrew Cohen