Falen Gherebi v. George Walker Bush Donald H. Rumsfeld

case, dispute Also, is no ap- there on we find no other error in the district peal about the date the fraudulent court’s actions.

receipt stopped agreed of benefits is—that AFFIRMED. to be the date of the Somsamouths’ arrest dispute October 2001. Nor is there a monthly about amounts received dur-

ing the period. disputed relevant What is

is the date that should be used for the period.

commencement of the calculation says only Ms. Somsamouth that the proper GHEREBI, Falen Petitioner-Appellant, commencement date is the date that actual began surveillance October of 2000. government argues that a more rea- George BUSH; Walker H. Donald sonable commencement date was the date Rumsfeld, Respondents- brought of the letter that their fraud to the Appellees. April

attention of the 2000. The SSA— No. 03-55785. date, district court selected the latter say we cannot that the evidence will not United States Court of Appeals, support Indeed, its decision. because the Ninth Circuit. accurate, proved quite letter to be it was Argued and Submitted Aug. more than reasonable for the district court Filed Dec. to determine that the Somsamouths were engaged in the later observed activities as

early letter, as the proba- date

bly even before that.6 The district court clearly

did not Bynum, err. See 327 F.3d

at 993.

CONCLUSION

Since before the Somsamouths re-

ceived SSI benefits on the basis that their

various disabilities rendered them unable However,

to work. they

working, made false statements about that SSA, and were making convicted of

those false statements.

We now peripeteia hold that this regard-

ing their fortunes cannot itself be reversed they claims that could not have been

engaged in work unless it was substantial

gainful activity and that their untruths

were not material as a matter of law.

6. Ms. year Somsamouth's confession indicated ties as much one before SSA received engaged that she had been work activi- the letter.

REINHARDT, Judge. Circuit

I. BACKGROUND presents This case whether Executive Branch uncharged hold foreign citizens of nations in indefinite de- in territory tention under the “complete jurisdiction and control” of the United States while effectively denying them the to challenge their detention in any anywhere, tribunal including the courts of the U.S. The issues required we are new, confront are important, and difficult. In the wake of the devastating terrorist September attacks on Congress authorized the President to necessary use all appropriate force against nations, organizations, those or persons he planned, determines author- ized, committed, or aided the terrorist attacks that occurred on September 2001, or harbored organizations such or persons, in order prevent any future acts of international against terrorism nations, the United States such or- ganizations persons. or Stephen Yagman, Yagman, Marion R.

Joseph Reichmann, Kathryn Bloomfield, S. Authorization for Military Force, Use of Yagman Yagman & & Reichmann & 107-40, (2001). Pub.L. No. 115 Stat. 224 Bloomfield, Venice, CA, for Petitioner-Ap- authorization, Pursuant to that the Presi- pellant. dent sent Afghanistan U.S. forces to wage a military operation that has been Olson, General,

Theodore Solicitor Paul commonly termed —but formally never Clement, de- Deputy General, Solicitor Wash- clared —a “war” against the DC, gov- Taliban ington, for Respondents-Appellees.

ernment and the terrorist network known Queda. Al Starting in early January began Armed Forces transferring to Guan- tanamo, a United States naval base located REINHARDT, GRABER, Before on physically situated on the is- Circuit Judges, UR, and SHAD Cuba,1 Senior land of scores of individuals who Judge.* District captured by the American military * Shadur, convenience, The Honorable Milton I. Senior Unit- 1. For we sometimes refer to ed Judge States District for the Northern Dis- Guantanamo Naval Base as "Guantanamo” Illinois, sitting by trict of designation. simply and sometimes as "the Base.” standably, no indication whether Afghanistan. given operations

during its “enemy place labeled event take in a matter individuals were will captured Now, decades, years, months, almost two years, for or if ever.3 combatants.” subjected over six States has the United January journal On group to indefinite de- captives these hundred of ists, lawyers, professors, and members of tention,2 afford yet has failed to them petition clergy filed for relief confinement, to challenge their means to before the United States District recognize the failure to them object to the Central District of California behalf war, legal to consult with prisoners of individuals class unidentified de counsel, claims or even to advance of mis- involuntarily tained at Guantanamo. The identity. Despite capture taken petition respondents named as President recent intention move officials’ stated Bush, Rumsfeld, Secretary a number detainees, sorting electing of a begin military personnel. of Coalition See of try release and which before which to Bush, Clergy F.Supp.2d 189 v. 1036 criminal military charges, tribunals on (C.D.Cal.2002). After the district court designation several the administration’s petition for lack of “next- dismissed six ago (including of detainees two months or, standing, alternatively, friend” for lack Australian) eligi- and one deemed Britons jurisdiction of v. Eisentrag under Johnson Lewis, trials, military Neil A. for see ble er, 763, 936, 70 339 94 L.Ed. S.Ct. Detention Red Cross Criticizes Indefinite (1950), 1255 this court affirmed on the Guantаnamo, 2003, 10, Times, N.Y. Oct. ground petitioners standing, lacked Al, actually military no tribunal at jurisdictional but rul vacated court’s single Nor has Guanta- been convened. ings Coalition regarding Johnson. See of given opportunity namo detainee been (9th Bush, Clergy 310 Cir. F.3d 1153 attorney, charges an had formal to consult 2002). him, permitted to against or been filed decision, our Belaid Gherebi Following any the basis of his detention in contest peti- filed an amended next-friend habeas Moreover, officials, includ- way. top U.S. Court, on his tion in this behalf of brother Rumsfeld, Secretary of have ing Defense Faren, standing issue not it clear that the detainees made February present. In his 2003 Amended until present in their circumstances held Petition, alleged violations Gherebi4 country’s campaign against terrorism this has, and the Third Geneva under- U.S. Constitution Id. administration ends. Lewis, Deten- 2.Although reports A. Red Cross there a dearth of official Criticizes Indefinite Guantanamo, Guantanamo, Times, Oct. tion N.Y. to the conditions at there as months, (reporting newspaper at Al that in a number of stories have been attempts, a made 32 including detainees have suicide subject, reporting on the interviews rights high groups which human incidence Afghani citizens and Pakistani released with situation). uncertainty of their attribute to the filing charges. Some of without prisoners released said that the uncer- have Lewis, fate, Erecting a 3. See A. Solid linguistic Neil tainty their with combined Term, Long N.Y. Prison at Guantanamo they with whom could isolation from others for (discussing communicate, at A20 Oct. very small confinement Times, prison elements, building cells, of a hard-walled traditional protection little from the acknowledgment detainees from Af- an being only one-minute shower allowed one ghanistan kept years). will be for per led a of detainees to at- week number multiple tempt suicide times. See Carlotta on, Lewis, to the de- 4. here "Gherebi” refers Responses: A. Threats and From Gall & Neil Gherebi, Guantanamo, tainee, than to his rather Despair Faren Captives; Tales of from friend, 17, 2003, Al; Belaid. see brother and next June also Neil N.Y. Times, involuntary arising summary Convention out of his court urging the district Guantanamo, jurisdictional a naval disposition question, detention base jurisdic- May that court a reasoned complete “under exclusive and issued order on dismissing he respondents,” petition tion further Gherebi’s Bush, that, jurisdiction. lack of “Respondents claimed have charac- Gherebi v. (C.D.Cal. 2003) (order combatant,’ F.Supp.2d Gherebi as an ‘unlawful terized dismissing petition jurisdiction). for lack prisoner and have denied him status as war, The court held that Eisentrag- Johnson v. have him under rights denied er Constitution, controlled foreclosed ... have de- petition over Gherebi’s federal court him nied access to the States because Guantanamo “is not within Courts,” sover- and have denied him access to territory.” eign U.S. Id. at In so legal counsel.5 did government holding, the court described its conclusion Thereafter, respond. urged Gherebi ],” id. at expressed “reluctant[ question” resolve the “threshhold “a hope higher court find w[ould] subject of federal matter in a way” principled provide remedy grant summarily.6 motion to petition his Id. at corpus. point, At that moved to petition preju- dismiss Gherebi’s without Court, before appeal On this Gherebi being to its (1) dice re-filed district argues that the district court erred court, or alternatively, to it to the transfer holding that Johnson v. Eisentrager pre- district court so that judge the district cludes the district of courts this nation jurisdiction. could decide the of exercising from over his peti- panel A granted (2) motions of this tion; and the District Court for government’s request, transferring Ghere- Central of jurisdic- District California has petition to the bi’s United States District tion the writ to hear because the custodi- Court for the Central of District Califor- within prisoners ans of the are juris- After additional nia. were filed motions diction of court. agree We read, part: 5. The Petition Respondents persons relevant 6. are the who have illegal custody exclusive and of Gherebi. Beginning January on or about date, continuing respondents to Court, 6.In a memorandum filed with this involuntary under force of arms and Gherebi stated: Station, brought to U.S. Naval (hereinafter ''GITMO”), Bay, sought Cuba petition under What is is: acknowl- complete jurisdiction edgment the exclusive and of that Gherebi is re- detained Cuba, Gheredi, respondents spondents; in the nation of that the reason for Gherebi’s stated; respondents captured whom nation be detention Gherebi Afghanistan. brought physically before the court for against 3. Gherebi continues to be held his of his determination conditions of deten- will, arms, tion, confinement, illegally, status, under force of incom- which condi- municado, and in violation of tions contended are to be in violation States Constitution and the Third Geneva Due Process Clause of the Fifth and Four- Convention, and he has been denied access teenth Amendments and the un- cruel and legal representatives. to punishment Eighth usual clause of the Amendment, Respondents have characterized Ghere- brought and be ordered to be combatant,” Amendments; as an compliance bi "unlawful and have into with those war, prisoner denied him status as a right that Gherebi be accorded his under rights have denied him the United equal under Amendment Sixth access to Constitution, counsel; released; denied States and have him that Gherebi be to the any appropriate access United States Courts. and all other and further unlawfully 5. Gherebi is detained. action. Branch to of our holding, preservation In so we ensure the points. on both Gherebi prevent values and to constitutional before us is issue underscore running roughshod Branch from Executive will withstand detention whether Gherebi’s alike. rights citizens aliens whether inquiry, but rather constitutional Here, simply accept govern- cannot are entire- the United States the courts of position ment’s that the Executive Branch at Guantanamo held ly closed to detainees authority to im- possesses the unchecked appear indefinitely who would —detainees indefinitely cit- prison any persons, foreign relief have no effective seek included, izens under the sole any nation or before the courts of other jurisdiction and control of the United judicial body. any international States, permitting prisoners without such process due “ene- recognize We forum, judicial any kind recourse of petitioners my combatant” counsel, regardless or even access fully are vary with the circumstances and or manner of confinement. length their challenges unprecedented aware of the policy precedent We hold that no lawful se- national that affect the United States’ un- supports such counter-intuitive and today, and we share curity interests that, contrary procedure, democratic to ensure that of all Americans desire government’s contention, Johnson necessary enjoys power Executive nor authorizes it. In our requires neither at- flexibility future prevent terrorist view, the inconsis- government’s position is However, in times national even tacks. tent with fundamental tenets American in such emergency indeed, particularly jurisprudence and most serious con- raises — law.7 cerns under international obligation is the the Judicial times—it Convention, predecessor did not argues government’s policy the which that the 7. Gherebi rights process even the due afforded contain of inter- detention” is violative of “indefinite Treaty. prisoners war in The of the recognize gravity While the national law. explained: argument, we need not resolve of Gherebi’s holding prisoners We that these are note, proceeding. in this We military authorities have no which the however, position government’s here the States, respect. are bound to The United longtime the is at odds with United States’ 27, by July of the Geneva Convention to leader international efforts role a forty-six coun- ... with other concluded safeguard rights codify prisoners of the tries, Reich, including an the German also wartime. It is at odds with one agreement upon accord- the treatment to be ef- important most achievements of these be captives. prisoners ed These claim to Conventions, forts—the 1949 Geneva protection. entitled its are require competent that a tribunal determine 14, at 789 n. 70 S.Ct. 936. captured prisoners. Article 5 of the status of adopted regulations government’s own have provides: the Third Geneva Convention requirement. Enemy Prisoners same per- any doubt as to Should sons, arise whether Personnel, War, Civilian Inter- of Retained belligerent act having a committed Detainees, Army Regula- U.S. nees and Other having the fallen into the hands of ¶ 190-8, 1-5, a, Applicable to the ch. tion enemy, belong any categories enu- Departments Army, Navy, the Air POWs], [defining Article 4 such merated in Force, Corps, Washington and the Marine protection persons enjoy shall 1, 1997) (Oct. ("All persons taken into D.C. present their Convention until such time as custody provided will be U.S. forces by competent status has been determined protections of 1949 Geneva Conven- tribunal. Prisoners tion Relative Treatment ('GPW') Geneva Convention Relative the Treatment legal deter- War until some status is War, Aug. authority.”). art. re- by competent of Prisoners of mined judicial v. de- quirement U.S.T. 75 U.N.T.S. 135. In Johnson review of executive itself, Eisentrager, Court discussed tention is also reflected in International Rights, obligations on Civil and Political under Covenant United States’ international Accordingly, we reverse ruling corpus habeas in a United States court to jurisdiction the district court over test legality of such detention. Id. аt petition Gherebi’s habeas does not lie. Be- 790, 70 S.Ct. 936. cause we also conclude that personal juris- In connection with its holding, the Court may diction against respon- be asserted first, discussed two factors: pris- that the dent Rumsfeld in the Central District of oners were “alien enemies” in a declared California, we remand the matter to the war, generally 769-776, see id. at 70 S.Ct. district proceedings court for further con- 936 (discussing significance of alien opinion. sistent with this We do not re- enemy status jurisdic- and the reach of here, solve and leave to the district court tion); second, petitioners decide, important the distinct and ques- were “any detained outside tion whether transfer to a different dis- the which the United States is sovereign, trict court appropriate under 28 offense, and the scenes of their cap- their 1404(a). § U.S.C. ture, their trial punishment and their beyond all the territorial

II. DISCUSSION any court of the United States.” Id. at Eisentrager A. Johnson aas bar to 777-78, 936; 70 S.Ct. see generally id. at 777-85, 70 S.Ct. 936 (discussing signifi- support To its contention that habeas situs, cance of extraterritorial or situs out- jurisdiction does not lie with respect to the side sovereign territory, and the detainees the Central Dis- jurisdiction). reach of The Court ex- any trict or other district court of the plained: States, pri- relies areWe cited to no instance where marily on Eisentrager, Johnson v. court, in this or country other 94 L.Ed. 1255 known, where the writ is has issued it (1950). Johnson involved a peti- who, on behalf of an enemy alien enemy tion German prisoners detained no relevant time and in stage no Prison, in Landsberg Germany, after being captivity, his has been within its ter- tried and to a sentenced fixed term of jurisdiction. ritorial Nothing by confinement a Military U.S. Commis- text of the Constitution extends such a sion in Nanking, China for offenses com- right, nor does anything our stat- mitted subsequent China to the uncondi- utes. tional surrender Germany at the end 399 at U.S. 90 (emphasis World II. S.Ct. 2230 War The Court declined to exer- added). jurisdiction, The cise Johnson Court holding sug- that the did not German petitioners, gest national that tried in enemy” China for acts mere “alien status of there, committed prison petitioners confined to would be sufficient in itself for Germany, right had no to seek a writ of the denial of jurisdiction; habeas rather it party. which the United States is a See Inter- protections stantive a right pur- as matter of national Covenant on Civil and Political suant to our obligations; international in- 16, 1966, Rights, stead, Dec. 999 U.N.T.S. аrt. only it has asserted apply that it will ¶9, ("Anyone 4 deprived liberty who is of his principles” "the of the Third Geneva Conven-

by arrest or detention shall be entitled to take appropriate tion "to the extent and consistent court, proceedings before a in order that a military necessity.” Office of the Press may court delay Sheet, decide without on the Secretary, lawful- Fact Status of Detainees at detention....”). Here, however, Guantanamo, ness 7, 2002, of his Feb. at at government has maintained that http://www.whitehouse.gov/news/releas- enjoy any Guantanamo detainees do not sub- .html. es/2002/02/20020207-13 Quirin, rejected ry. In the Court on of alien ene- that in the case emphasized peti- available when their enemy is not merits claim of German mies habeas (and deten- of their trial and and the situs Washington acts exe- held DC tioners territori- of this nation’s all lie outside tion there) with- that the President was cuted jurisdiction.8 al authority to statutory out or constitutional by that the exer- government military contends them to be tried com- order jurisdiction over Gherebi’s they of habeas cise for the which mission offenses with Johnson by because foreclosed petition is and had convicted charged been justified the Court’s that the conditions Commission; then ruled that to Gherebi apply equally there decision lawfully Commission had been constituted Guantanamo detainees. We the other petitioners lawfully pun- tried assume, appeal, purposes may 20-21, at ished it. 317 U.S. S.Ct. most, held at being if all of those not Yamashita, In on the Court reviewed Gherebi, Guantanamo, including are the II merits similar ‍​​‌​​​‌‌‌‌​‌​​‌​​‌‌​​‌‌​​‌​‌​​​‌​‌​​​​‌​​‌​‌​​‌‌‍World War habeas enemies,” indeed “ene- of “alien equivalent enemy Japanese of an claim behalf combatants,” not fore- although we do my Philippines, general, detained challenge Gherebi’s close here was time. Yamashita remand. validity assumption upon of that tried, convicted, and sen- already had been issue, for of this purposes dispositive by military commission. tenced death acknowledges, as the appeal, Quirin, 7-9, Following U.S. at 63 S.Ct. Guantanamo, legal status relates to determined that the commis- the Court It is our detention. petitioner’s the site of constituted, lawfully sion had been legal of that status re- determination lawfully pur- detained petitioner was disposi- regarding the question solves Id. suant to his conviction and sentence. whether or not jurisdictional factor: tivе 25-6, 1. We need not resolve within the terri- being is detained Gherebi of what constitutional claims jurisdiction of the United States or torial persons at Guantanamo detained jurisdiction, as within its if allege entertain properly may be. case say it to claims exists. Suffice government does not appeal, the On this lie, if detainees are jurisdiction does being if detained dispute that Gherebi wholly rights challenge without jurisdiction over his ha territory, on U.S. without a indefinite detention habeas their lie, or not will whether he petition beas kind, and the condi- hearing or trial Quirin, parte Ex In alien.” “enemy an of such detention. tions (1942) 87 L.Ed. S.Ct. Yamashita, 1, 66 re S.Ct. and Sover- 1. Territorial Jurisdiction 499(1946), the re 90 L.Ed. eignty petitions of the habeas viewed the merits respect to Guantanamo With the in by enemy prisoners detained filed alien that, detainees, (or government contends the then-sovereign) territo- U.S. jurisdiction sovereignty, or as territorial Although the the 8. Court discussed accept rights were certain Fifth Amendment case be. We that construction whether the (and enemy soldiers stated that appeal. available to purposes We also believe of this for not), holding its as they essence of is the of construction to be the most reasonable it Certainly, government the forth above. set that decision Whether the Court’s decision. foreclosing right as the of construes Johnson is, course, the a matter for stand of should enemy petitions in cases aliens to file habeas for Supreme Court and not us. relevant connection with in which there is no Johnson, ju- “complete the touchstone of the under and control” over Base, recognizes the the inquiry sovereignty risdictional is “continuance of —not sovereignty” ultimate in Cuba. In other mere territorial that the —and words, government’s view, whatever United States does not maintain sover- say the Lease continuing Treaty about eignty over the at issue. Juris- the United complete ju- States’ territorial foreclosed, is ar- government diction the risdiction, Guantanamo falls outside U.S. gues, although the because 1903 Lease sovereign territory distinction it asserts (and agreement Treaty the 1934 continu- —a controlling under Johnson. agreement Lease ing [“the the and con- Treaty”])9 governs tinuing the Although agree government with the of Guantanamo’s terms territorial relation- jurisdictional that the of ques- outcome the ship the States cedes to to United the U.S. tion hinges lеgal this case on the status occupies United States of compensation eminent domain with full by to the under lease entered into President Theo- owners thereof. Id., added). (emphasis art. dore Roosevelt with Cuban Ill supplementary supplemented by agreement, Under a agreement, by United States was afforded the subsequent treaty and continued effect exclusive try citizens and non-citizens for crimes executed President Franklin Delano reads, committed on the Base. Article IV treaty Roosevelt in of indefinite part: relevant duration and cannot be terminated without Fugitives justice charged from with agreement, or the the United States' abandon- crimes or misdemeanors amenable to Cu- property by ment of the base United Law, areas, taking ban refuge within said States. shall up be delivered the United States implement The 1903 was Lease meant by duly authorities on demand authorized provisions of Article VII of a 1901 ofAct Cuban authorities. (and Congress Appendix of Article VII of the hand, On Republic the other Cuba Cuba) (the to the Constitution of “Platt agrees fugitives justice charged from Amendment”) providing sale for the or lease or crimes misdemeanors amenable to coaling for land sta- naval law, United States committed within said "to United tions enable the States to maintain areas, taking refuge territoiy, in Cuban shall Cuba, independence protect demand, on up duly be delivered author- thereof, people well as for its own defense” ized authorities. following Spanish-American War. See See Lease of Certain Areas for Naval or Coal- Agreement Between the United States and Stations, Cuba, ing July art. U.S.— Coaling Cuba for the Lease of Lands IV, added) T.S. (emphasis No. 426 [hereinaf- Stations, 1903, U.S.-Cuba, 16-23, Naval Feb. Supplemental Agreement”]. ter "the 1903 (excerpting explain- T.S. 418 Article VII and same, agreed Under Article I of the the U.S. ing purpose) [hereinafter "the 1903 pay Cuba the annual sum two thousand reads, Lease”]. III of the Lease rent, Article id., I; dollars in see art. and under pertinent part: III, agreed Article the United States ato limit While on the one hand the United States establishing on commercial or en- industrial recognizes the continuance Id., ultimate terprises on the lands. art. III. sovereignty Republic Cuba treaty original A reaffirmed water, above described areas of land agreements, extending the Lease in the same Republic the other hand Cuba con- long form and on same conditions "[s]o during period occupa- sents that States of America shall not aban- by tion the said United States of areas un- don the said naval station of Guantanamo” agreement der the terms of the the contracting parties "agree United two do not jurisdiction complete abrogation States shall exercise stipu- to the modification or of the and control said agreement.” over within areas with Treaty Defining lations of the right Cuba, 29, 1934, acquire public pur- to ... the May for Relations with Cuba, U.S.— Ill, poses any of the United States land or other art. 48 Stat. T.S. No. property by purchase byor therein exercise 866. now, detention, century right acquire to ... we do “with the of the situs Gherebi’s of property by pur- land or therein pre- any other that the holding read Johnson by or exercise of eminent domain chase jurisdiction of is for the exercise requisite to compensation with full the owners juris- rather than territorial sovereignty have thereof.”10 also treated Guanta- We juris- that the Nor do we believe diction. subject as if it namo were to American exercised over the United States diction sovereignty: have acted if we as we intend Germany any in is Landsberg Prison permanently, to the Base retain have jurisdiction that this way analogous to exclusive, right unlimited to exercised over When nation exercises Guantanamo. wish, any it of regardless use re- detained in petitioners were the Johnson in the Lease or con- strictions contained limited and shared authori- Landsberg, the tinuing Treaty. on the Prison ty the exercised over U.S. approached nowhere temporary conducting jurisdictional inqui- basis When its permanent Johnson, exer- at potentially ry spoke the Court different States’ jurisdiction jurisdiction” and control complete of times of “territorial cise U.S. Guantanamo, of term on a including “sovereignty” using the latter — it minority has of occasions11 because was in- eminent domain. The United States Landsberg and con- Prison was not “complete jurisdiction disputable exercised jurisdiction within either territorial or Base for more than one U.S. trol” over the treaty conveying spoke The Court to issue the extra- was no lease or 10. There eight petitioners and con- total and exclusive territorial situs of instanc- fact, Landsberg. Landsberg after only points trol over opinion; at es in the two thеse following was taken over U.S. forces "sovereign” "sovereignty” does the term II, flags World War three flew over the town: See, appear. e.g., U.S. at 70 S.Ct. American, British, flags. and French ("We are no where a cited to instance Airbase, History Landsberg court, any country where the in this or other http://www.furstytreemovers-landsbergbavari- known, it behalf of an writ has issued (last ans.org/ history_of_landsberg.htm visited who, enemy at relevant time and in alien no 10, 2003). peti- Although the Johnson Nov. stage captivity, of his has been within its no pursuant conviction tioners held added); (emphasis jurisdiction.") id. territorial auspices, proceedings conducted under ("But extending consti- 70 S.Ct. 936 facility formally Landsberg criminal was beyond citizenry, protections tutional serving designated purpose as a pains point been at out prison war criminals where executions of presence within its territorial was the alien's during the Allied trials at Nurem- convicted Judiciary gave power jurisdiction that Shanghi berg, would carried Dachau and act.”) added). Moreover, (emphasis the dis- out, arrangement was dissolved "sovereignty” and never uses the word sent thereafter, May little more than a decade majority making strongly for criticizes the Landsberg Prison for War Crimi- 1958. See jurisdiction” the touchstone "territorial nals, http://www.buergervereinigung-lands- (Black, inquiry. at 952 jurisdictional See id. berg.org/english/ warcriminals/warcrimi- J., dissenting) ("Conceivably majority may (last 10, 2003). visited at Nov. nals.shtml citizenship a find sufficient substi- hereafter named, respondents in Johnson —the That the permit tute territorial and thus for Defense, Secretary Secretary Army, illegal protect sen- courts to Americans from Army, and Chief Staff of the the Joint inescapably opinion tences. But the Court’s petitioner's im- Chiefs of Staff —denied power to afford the least bit of denies courts custodian, Commanding mediate General subject protection alien who is our Command, European subject “was abroad, occupation government he is direction," even if telling their less-than- enemy belligerent and even after nor pris- neither exclusive of U.S. control over the nature declared.”) Johnson, 766-68, (emphasis officially add- peace is on. ed). territory. only ques- jurisdiction U.S. of our insular courts and he imprisoned tion for the Court was whether it was Johnson within of jurisdiction petitioners’ could United States. None exercise over these heads of of jurisdiction can light they of fact be invoked these habeas claims that prisoners. being foreign on ground detained not, any recognized legal that was under added). at (emphasis Id. 70 S.Ct. 936 standard, territory. treated American Accordingly, way compels in no Johnson Court expressly And while the distin- that, the conclusion where the U.S. exer- guished on Yamashita the basis that the jurisdiction” situs, cises “territorial over at possessed “sovereignty degree that of authority territorial possessions,” this time over these insular control is not to support sufficient (the Philippines), sug- jurisdiction. the Court To contrary, nowhere it strongly gested “sovereignty,” implies that opposed jurisdiction territorial is suffi- short, In jurisdiction,” cient. necessary “territorial was we do not believe that fact, may properly factor. In Johnson immediately following require be read to statement, “sovereignty” as an prerequisite Court specifically noted essential jurisdiction.12 of habeas Rather jurisdiction” petition- three “heads of territorial jurisdiction invoked, enough. might ers none have of which “sovereignty” used the term of and -all It is evident that the United States “territory”: which referred instead to jurisdiction exercises sole territorial Yamashita’s offenses on were committed jurisdiction” Guantanamo. “Territorial ex our territory, he was tried within the “territory ists as to govern- over which a dissent, At least two petition. vigorous Justices of the current Court nied Mezei's In Davis, agree. Zadvydas appear to v. Justice Jackson wrote: *, (2001) U.S. 704 n. 121 S.Ct. 2491 Fortunately, startling, it is still in this coun- J., (Scalia, dissenting) (stating, in a try, dissent person indefinitely to find a held Thomas, joined by Justice in- that Johnson custody executive without accusation of a "military’s enemy volved detention of judicial crime or trial ... Procedural fair- aliens outside the territorial of regularity ness and indispensable are States”) added). (emphasis liberty essence ... respon- Because the entry, dent has no does it follow That Johnson should not be read to fore rights that he at has no all? Does the close where the United States power to exclude mean that exclusion authority and exercises control is exclusive by any be continued or effectuated means bolstered Justice Jackson's own dissent happen appropriate to seem years Shaughnessy several later in ex. ... Mezei, authorities? when indefinite confine- rel. enforcing ment becomes means of (1953), ex- 97 L.Ed. 956 in which the author clusion, process seems to me due majority opinion expressed the Johnson requires alien be informed of its strong requisites proce views about the grounds have a fair chance process due to over- dural where de an alien was ... come them It is indefinitely unique inconceivable to parcel tained on a me simple justice that this measure of territory, temporary and fair "in his haven dealing security would menace the Ellis Island." of this Id. S.Ct, 625. country. Shaughnessy, No one can immigrant permanent an alien make me believe that ly gone. are that far excluded from United States on secu rity grounds, functionally Although legal Id. 632-37. in status detained definitely on Ellis Island because other as clear-cut as that of Ellis Island, back, eloquent peti countries would not take him words Johnson’s au- corpus asserting carry powerful message present tioned for habeas unlawful thor for the majority against confinement. The treated strongly his case case and caution a narrow regular proceeding, like a reading exclusion de- of his earlier decision.

1289 court, Here, thereof, relationship between ter or or a subdivision ment jurisdiction.” jurisdiction right See Blaok’s and to file Law DICTIONARY ritorial ed.1990). (6th The U.S. 1473 petitions particularly habeas is clear. The pre “power proscribe, exercises criminal United States exercises exclusive law” in scribe, adjudicate, enforce the and jurisdiction persons, over all citizens and York, Guantanamo, Jersey v. New see New alike, aliens who commit criminal offenses * (1997), 291594, 120, 28 WL No. 1997 Base, to Article pursuant TV the 1273, reviewed at 520 received at U.S. Agreement. Supplemental supra See note 1726, 767, 140 L.Ed.2d 118 S.Ct. subject persons who commit crimes We (1998) “natural and (describing the 993 at Guantanamo to trial in United States ”), ‘jurisdiction’ ordinary meaning of Surely, enjoy persons courts.13 such further, jurisdiction is government’s corpus to habeas in at least some Lease, Ill, art. 1903 “complete,” both see circumstances, respects. these for Under 9, exclusive, Sup see 1903 supra note jurisdictional purposes inquiry, of our IV, (provid art. id. plemental Agreement, exercises apparent the United States exclusive courts exercise ing U.S. exclusive territorial over Guan jurisdiction over citizens criminal of its by tanamo and virtue exercise aliens, alike, on the for offenses committed jurisdiction, rights such exist for habeas Base). Legal Op. also 6 Off. Counsel persons reiteratе located at Base. We (1982) then At 236, 242 Asst. (opinion Olsen) inquiry that the essence of our involves (concluding torney Ted General petitioner’s situs of de legal falls within “exclusive status that Guantanamo jurisdiction,” “because of “enemy States’ question United tention —not the whether the United grant lease terms which general precluded from combatants” are control jurisdiction and ‘complete States petitions, filing habeas a nation ex property”). over’ that Where particular is whether constitutional jurisdiction” a terri “exclusive over ercises may be raised. The first of these sues jurisdiction lies. See U.S. tory, territorial Quirin questions and Ya is answered (9th 1166, Cir. Corey, v. 1172-76 232 F.3d us. second is before mashita 2000) congres (examining provision sum, In we conclude that virtue jurisdic act that defined territorial sional of territorial the United States’ exercise “exclu within the tion to include States). Guantanamo, ju- jurisdiction” of the United sive Lee, Rogers, v. 906 F.2d example, Id. Seealso United States 13. For in United States curiam) (4th Cir.1990) (per (ap (E.D.Va.1975), &117 n. 1 F.Supp. peal of indictment of Jamaican from dismissal working employee, on Naval Base civilian charged with sexual who had been national Bay with under a contract at Guantanamo allegedly on Guantana occurred abuse that Navy, prosecuted in the Eastern District was subpoenas all government served mo. The drug Virginia offenses committed on transported them to defense witnesses §§ Base violation of 21 U.S.C. trial.); Norfolk, Virginia, the site of the Hai suppress considering Rogers' motion to McNary, 969 F.2d Council Inc. v. tian Ctrs. claim, the court rea- and Fourth Amendment (2d Cir.1992), vacated as moot soned: Council, Inc., Ctrs. nom. Sale v. Haitian sub. lease, agreed By that the United Cuba S.Ct. 125 L.Ed.2d complete (1993) control over (describing testimony, States should have in the con trial, occurring the con- within consistent criminal matters Circuit text this Second us It is clear to law to citizens applying fines of the base. U.S. criminal agreement, on the leasing States accused of crimes under the and non-citizens Base). apply. law to 1290 present Moreover, in the Al- support

risdiction lies ease.14 that answer. pres- dispositive our ent case though analogous conclusion is of the is far more to Yama- us, here, shita than to principal issue before we also consider Johnson: like in Yama- contrary but ground an our shita to in holding: alternative for the circumstances Johnson, the United sovereignty States exercises total whether the U.S. exercises dominion control and over the in over Guantanamo.

question possesses rights and of eminent domain, powers inherent the exercise of Sovereignty and the 1903 Lease sovereignty, simply while Cuba retains a Continuing Treaty of 1934 contingent reversionary interest that will if we Even assume that Johnson only become effective if and when the requires sovereignty, our decision that ha relinquish United States decides to its ex- jurisdiction lies In control, beas is the same. clusive sover- i.e. that, dominion, regard, we conclude least Thus, at for habe eign territory. over the purposes, a part Guantanamo is hold prerequisite that the to the exer- sovereign territory of the United States. cise of is met language Guantanamo, Both the of the Lease con of case whether that prereq- tinuing Treaty practical reality and the jurisdiction” uisite be “territorial “sov- or authority ereignty.” and control over the Base States, Johnson, Al noting 14. In Odah v. United 321 F.3d 1134 "which involved convict- - (D.C.Cir.2003), -, ed, granted, enemy cert. occupied aliens territories out- States,” S.Ct. 124 157 L.Ed.2d 2003 WL side United does not resolve the (Nov. 2003), only other of whether "the fifth amendment Appeals non-accused, to decision applies consider to non-hostile aliens here, question presented the DC re Circuit military held incommunicado aon base with- jected petitioners' arguments that States, Johnson exclusive control "does turn technical definitions namely Bay.” 969 F.2d at 1343. sovereignty territory,” opined or that the explained: The Second Circuit further text leases shows that Cuba—not appear incongruous It does not to be us sovereignty United States—has over Guanta overreaching or to conclude that the United holding, at In namo. F.3d 1142-43. so States Constitution limits the conduct of part the DC Circuit relied in on Cuban Am. personnel respect with to offi- (11th Christopher, Bar Ass’n v. 43 F.3d 1412 cially authorized interactions with aliens Cir.1995), in which the Eleventh re Circuit brought personnel to and detained such " jected argument juris 'control and exclusively on a land mass controlled equivalent sovereignly,” diction’ id. at given undisputed ap- United States ... 1425, to find that Cuban and mi Haitian plicability of federal criminal laws inci- grants interdicted on the seas and detained dents that apparent occur there and the physical outside the borders the United familiarity governmental personnel at States Guantanamo were without constitu guarantees the base process, of due statutoiy rights cognizable tional and fundamental fairness and humane treat- courts the United States. country purports ment which this afford Circuit, however, persons. to all expressed The Second Although contrary subsequent Id. years Haitian Centers was view three before Cuban Amer- Ctrs., 1341-45, ly pursuant party vacated ican. as moot settle Haitian 969 F.2d at ment, Council, Inc., see Sale v. preliminary the Second Circuit Haitian Ctrs. affirmed injunction prohibiting S.Ct. 125 L.Ed.2d from (1993), returning to we find Haiti Haitian nationals the Second Circuit’s interdict- sea persuasive, ed at and detained at views to be Guantanamo in the see v. Madi Edwards (9th Cir.1960), adjudication gan, absence of a fair as to whether F.2d 78 n. 3 have, fact, they asylees. opinion, recently bonafide In its cited this case with Johnson, expressly distinguished Corey, the court approval. See 232 F.3d exercises all of the attrib- analysis possesses of the term turn to an nowWe sovereignty, utes of while Cuba retains pur- “sovereignty” application, and its only reversionary sovereignty habeas, role residual States’ to the United poses interest, contingent possible on a future argues The at Guantanamo. to its Lease, States’ decision surrender United that, plain the terms under jurisdiction complete and control.15 sov- “ultimate” “continuance” Cuba’s the “maxi- retains ereignty means Cuba principally is defined in tem- “Ultimate” the sovereignty over or “definitive” mum” not Law poral, qualitative, terms. Black’s period of U.S. the indefinite during Base Dictionary defines “ultimate” mean: consequently, that Guantanamo reign, and last, in finally, at last At the end. The ter- sovereign classified as U.S. cannot be or progression sequence the train of jurisdictional ritory purposes of our the by precedes; all that ar- tended toward re- government’s assertion inquiry. The result; final. rived as the last “ultimate” is us to consider whether quires Similarly, DICTIONARY1522. Blaok’s Law “qua- a “temporal” as a or to be construed Third New International’s first Webster’s words, does In other litative” modifier. two definitions state: (and Treaty) continuing the the Lease last, final completed, ultimatus in “ultimately” sovereignty vest Cuba space la: or time: far- most remote sovereignty becomes the sense that Cuba’s thest, ... earliest if and when substantively effective by precedes: 2a: toward all that tended phys- its decides to abandon ... the last result arrived at as and control of the ical absolute Diс- Third New INTERNATIONAL WebsteR’s (or differently, is sover- put it Cuba’s tionary (1976). gives then Webster’s sense); or temporal eignty residual less-frequently meaning used (and Treaty) continuing does Lease government: urged here definition “basic, “maximum” fundamental” or vest basic, fundamental, original, primi- 3a: (the “ul- qualitative meaning of alternative ... tive infra) sovereignty timate” discussed 4: maximum times, during specifically at all and Cuba Id. period in which the United the indefinite jurisdiction and complete maintains primary (including

States definition Web- that, meanings) the Base? We conclude control over first second dictates ster’s and Lease, sovereign- “ultimate as used in the the Lease under which sov- construction of quali- if and ty” only temporal ereignty can mean to Cuba when reverts that, relinquish also conclude decides to control. sovereignty. tative We States definition, per- Therefore, the Unit- potentially under during the unlimited sovereignty during enjoys and con- possession manent ed States period U.S. territory. Adopting it Guantanamo, occupies period over the United States trol interrupted during period of eignty has ex- A Commander of the Base former complete we exercise occupancy, U.S. au- since pressed same view of our control, thority history case in his but in the in Guantanamo terminated, Base, posted Navy's official area occupation Naval on the sovereignty writes: website. He would revert to ultimate Cuba. recognized "the continuance [T]he U.S. has I, ch. vol. sovereignty of Cuba History of the ultimate Bay, of Guantanamo Ill, "Ultimate,” http://www.nsgtmo.navy.mil/ga- areas.” and above the leased (last eventual, zette/History_98~64/hischp3.htm visited key meaning or is a word final 10, 2003). interpreted sover- Nov. here. that Cuban It qualitative the alternative construction sovereignty, Cuba’s specifying that ('Webster’s meanings, being third and fourth only comes into event definition) government’s proffered United States abandons Guantanamo: case, wholly render would the word “ultimate” such Guantanamo reverts to Cuba superfluous. sovereign- If the Lease vests sovereignty Cuban than rather be- ty in during period subject Cuba the indefinite ing to some other actual at- tempted it has to the U.S. “complete disposition. ceded important, Most un- control,” nothing would be preferred construction, der the temporal “sovereignty” added the use term Cuba does not retain substantive sov- modifier employing describing ereignty during sover- the tеrm of the occu- “basic, as eignty fundamental” or “maxi- pation, that, with the during result such mum.” If government’s understanding the period, sovereignty in vests the United correct, of ultimate no sovereignty duty effect, States. This Court’s to give would vest in the United possible, States at to every where word of treaty, a all sovereignty time and would in Menasche, vest see United States 348 U.S. all 528, 538-539, Cuba at with or times without the use 99 L.Ed. 615 (1955), of the word “ultimate.” In such circum- should make us reluctant to deem stance, simple treaty terms, a that statement Cuba re- or terms used other im- sovereignty tains portant would suffice. In con- international agreements, as sur- trast, “last, to construing Walker, “ultimate” mean plusage. See Duncan v. 533 U.S. result,” final” or “arrived as the last or S.Ct. L.Ed.2d 251 (2001). in practical reversionary a right terms if This is especially the when a case and when the lease is occupies pivotal terminated term a place in a legal States, scheme, id., serves to define the nature as does the word “ultimate” in provided sovereignty Cuban for under Article III of the 1903 Lease. In constru- the Lease and gives meaning and ing substan- and continuing Treaty, Lease we tive effect to the term “ultimate.” Under adopt primary, temporal definition of “ultimate,” the preferred term, construction of as used in the English lan- use that term the Lease estab- guage gives term that its use as a —a lishes the temporal contingent and nature modifier meaning.16 substantive government argues pivotal also that support the defi- term offers further a tem- poral pivotal Spanish nition of this term in the construction of "ultimate.” "Definiti- " 1) final; Treaty va can “definitiva’’) mean either version that which {soberanía 2) ("temporal”) ("qua- concludes support qualitative or decisive lends for a construction litative”), but even where is de- government "ultimate.” The defines “definitiva” “defini- ” ” terms, qualitative always fined in it has a “que tiva admite no cambios or "not temporal example, element. For the author- contends, subject change,” rely- and then dictionary Spanish language itative Percheman, (7 ing Pet.) on U.S. v. ” “ temporal defines in both (1833), “definitiva 8 L.Ed. 604 ‘ultimate’ itself decide, qualitative “que terms as resuelve o naturally is more defined this context as ” decides, concluye," resolves, "that or ‘basic, fundamental, original, primitive.’ It added). (emphasis or concludes” See Real definition, is argues, this (last http://www.rae.es/ Española, Academia comports best with Percheman s doctrine that 10, 2003). visited Nov. To a illustrate com- can, English Spanish "if parts with- term, usage dictionary mon this then violence, agree, out be made to that construc- "temporal”/ "quali- offers the oft-cited mixed conformity ought tion which establishes this example tative” of "sentencia definitiva" prevail.” 32 U.S. at 88. judgment judgment “final of conviction”—a government's decisive; construction inverts is judgment both final and conclusion that the Percheman doctrine com- that is both last time and that constitutes fact, pels. Spanish Id.; dispositive In definition this order. see also Gran Die- Finally, sovereignty “continu- the term “ultimate” uses the word That the Lease clearly context. is must be construed It “ultimate sover- to describe Cuba’s ance” “ultimate,” the temporal definition of not nothing undercut the tem- does eignty” counterpart, its that most natu- qualitative As “ultimate.” poral construction accurately the nature rally describes during period explained, have sovereignty By in Guantanamo. Cuban and con- exercises dominion agreement, terms of the plain Guantanamo, trol, sovereignty, over i.e. acquires full dominion control over inter- contingent Cuba retains Guantanamo, pur- as well as reversionary right springs into est—a power of land and the eminent do- chase termination of the U.S. being upon lawful main. Until such time as the United reversionary interest that reign. It rights, its States determines surrender (or qua- even substantive “continued” executive, full exclusive exercises litative) is ceded to the United sovereignty legislative judicial over the control effect, the lease functions States. territory, rights and Cuba retains no disposition a land contract unlike standard to any anything respect kind to do the law, in property in area familiar the of If mean “fi- Base.18 “ultimate” can either rights a of partitioning the of bundle fundamental, which “basic, (temporal) nal” or and is com- into and future interests present (qualitative), given maximum” that Cuba the agreement any not under retain does monplace.17 (2002) jure de (giving as between and de sover- an tinction facto cionario Larousse example mixed eignty). for another "definitiva” example, qualitative” proy- "El "temporal”/” definitivo," as “the final ecto translated purported that Lease to 18. To the extent the plan.”). Spanish dictionaries confirm Other may types the of activities the U.S. con- limit " temporal subject is to both that "definitiva duct, particular agreement aspect of that the see, meanings, e.g., qualitative and Diccionar- signifi- any practical legal and and all lost Vox, (last http://www.diccionarios.com io recognize the U.S. ceased to cance when " 10, 2003) (defining Nov. visited "definitiva 1961, began diplomatically and Cuba in or, concluye," "que o "that which as decide of act in direct contravention the thereafter to concludes”), Spanish-English and or decides including agreement, up to and terms of the tempo- a support dual dictionaries also prisoner present of Guantanamo as a use ral/qualitative definition. See Larousse Dic- fighters. suspected camp war Taliban of (1989) (defining in tionary "definitiva" event, 11(A)(3). any even See Part infra “definitive; final”); English American effective, the did not curtail while limitation http://edu- Heritage Spanish Dictionary, authority and United States’ exclusive (last cation.yahoo.com/reference/dict_en_es/ Base, quali- Nov, to over the serve reserve control 10, Thus, 2003) (same). under visited period sovereignty during doctrine, to Cuba tative analysis is formu- Percheman’s rights occupation, any or afford to of U.S. and answer evident: because the laic during principally to English "ultimate” is de- Cuba exercise word terms, Spanish temporal period and the and of U.S. dominion con- fined unlimited " susceptible See, is to either tem- Op. Att’y term 270-71 e.g., 29 Gen. trol. "definitiva definitions, poral qualitative or a mixed or (1911) ("[Wjhen property acquired is one definition, temporal definition that it is treaty, any by virtue a in another state of state prevails. property sovereignty may attach to the which, acquired limited the terms on is so sharing sovereignty 17. The division or which, property was purposes for and the commonplace. Sovereignty "is an indi- not nothing acquired ... There seems be whole[.]” visible New Webster's Third Inter- prohibits such situa- or in law which reason (defining "sovereignty”). national tion.”). U.S., 202, 212, 11 S.Ct. Jones v. 137 U.S. also (1890) (recognizing a dis- 34 L.Ed. 691 degree ponline.org/cuba/cubaproject/cubansta- control (last 2003). during period tementhtm visited Nov. United time, At the the use of the term same the Cuban occupation, States powerless that pre- in has admitted it is “sovereignty” “ultimate” as a modifier of vent U.S. uses that conflict with the terms agreement only that can mean “final” Treaty.19 “basic, continuing Lease Id. fundamental, (temporal) and (qualitative). Accordingly, and maximum” Sovereignty gаined by continuing we conclude that Lease demonstration intent exercise sover providing Treaty must be construed eign country control on part possesses no substantive sover- Cuba possession during eignty period over Guantanamo power has the its will. enforce sovereignty All reign. such Rice, (4 See United States v. per- during potentially indefinite Wheat.) (1819) (hos 4 L.Ed. 562 period is vested manent occupation gives tile possession” “firm States. rights the “fullest sovereignty” occupying power, suspending while Subsequent of the Parties Conduct sovereign authority of the land whose ter Continuing Trea- Lease U.S., ritory is being occupied); Cobb v. ty (9th Cir.1951) (an F.2d occupying mili- There is another consideration that power may acquire sovereignty through an our concluding tates in favor of that the act formal or “an expression annexation presently exercising United States is sov- conquered of intention to retain the terri ereignty For over Guantanamo. a consid- tory permanently”); also Fleming see v. time, period government erable our has (9 How.) 603, 614, Page, 50 13 U.S. L.Ed. a in- purposely directly acted in manner (1850) (the 276 “sovereignty U.S. had and with the the consistent terms of Lease dominion” occupied over the Mexican terri lim- continuing ‍​​‌​​​‌‌‌‌​‌​​‌​​‌‌​​‌‌​​‌​‌​​​‌​‌​​​​‌​​‌​‌​​‌‌‍Treaty. agreements Those tory, country where “the was in exclu the it use of a territory the to naval base U.S., possession sive and firm coaling Contrary station. to the rele- governed by military its acting authorities provisions agreements, vant the President”). under the orders of the Cf. Base United States has used the for what- Henkel, Neely 109, 119, ever purposes necessary it deemed or de- (1901) (where S.Ct. 45 L.Ed. 448 the protested sirable. Cuba has these actions occupation policy expressly disavows “ex in public years fora for has refused to sovereignty, ercise of jurisdiction, or con cash the United States’ rent checks. See area, trol” over occupied the and is aimed for Policy’s Center International Cuba at the establishment aof to Project, by Statement the Government of may restored, which the area this occu Cuba to the National and International pied territory “foreign”). is considered (Jan. 11, 2002), Opinion Guantanamo, Public at http://ci- respect With to the sover- January 19. contemplated In to agreement statement issued them the community as the international detainees justified presence territory. its in our But Guantаnamo, gov- arriving at Cuban absolutely pre- Cuba do nothing could ernment lamented the unfair im- conditions vent it[.] by posed Treaty powerlessness and its by Statement the Government of Cuba stop transgressions. The Statement at Opinion, National and Public International reads, part: http://ciponline.org/cuba/cubaprojec1/cuban- decades, [T]hroughout more than four statement.htm. uses, put multiple base has been none cilities, power has fast-food establishments. See authority and eign face U.S. Zones, Neuman, Anomalous It Gerald shape in recent decades. taken (1996). As through the concrete practically, 1197,1198 emerged, Stan. L.Rev. approximately people 6,500 intent on en- lived powerful nation actions of Base, territory including employees civilian of sever- to use the forcing right nationalities, (describing see the find- regard any limitations. al id. without occupies researcher), ings about of one and the United have existed Whatever employed foreign hundreds of our insistence States has sovereignty previously, our Guantanamo, including for nationals at Cuban on our to use desire, at Today, Id. and our refusal exiles and Jamaicans. purposes and all way in every independent limitation on our the Base is recognize specific way in no reliant on Cuba’s and continu- Cuba and rights provided Lease cooperation. our ing Treaty, any doubt that removes is complete. sovereignty over Guantanamo to limit The United States’ refusal its permitted and control to the use originally leased dominion The United States Treaty continuing for be- Base, agreement, Lease pursuant to 1990’s, when coaling pronounced station. See came more use a naval and Lease, the Base as de- note Base relations President Clinton used supra 50,000 facility approximately for the two world tention through remained stable refugees intercepted at wars, Haitian and Cuban after the United States terminat- but trying to reach the United States for with Cuba sea diplomatic ed relations revolution, Bonilla, refuge.20 Afghan Laura the United War following Cuban Agenoe Guantanamo, purposes Prisoners began to use base States 29, 2001, Fbance-Peesse, agreement. Dec. available contrary to the terms of Bay, History, Brief 2001 WL 25095452. President A See Guantanamo using Base in a .navy again proposed efault.htm http ://www.nsgtmo Clinton .mil/D 2003). (last At manner not authorized the terms the same visited Nov. 20,000 country refugees time house time, many of the host lease—this citizens Shenon, Base, Philip and Ma- from Kosovo. See U.S. sought refuge on the U.S. Bay Base Cuba began patrol- militiamen Chooses Guantanamo rines and Cuban Site, 7, 1999, Apr. Times, Refugee fence N.Y. ling opposite sides the Base’s for end, plan in the was Although, 24 hours at A13. that have continued patrols line— 1964, only earlier actions implemented, In Id. Fidel Castro day ever since. of over 600 and the 2002 arrival supplies to the Base foreshadowed cut off water and of Al- entirely alleged individuals to be members remains Guantanamo became and Taliban, transport- self-sufficient, Queda who were plant, its or the with own water military by the for schools, fa- ed to Guantanamo U.S. entertainment transportation, explains: The base has also Navy’s tion of less than 30. 20. official website The contingency migrant opera- 1991, two conducted expanded the naval base’s mission 34,000 refugees passed Operation in October 1996 tions: Marathon as some Haitian 1994, May through Bay February ... In Guantanamo Haven in 1997. Both Present Signal began and naval Operation Sea events the in- of these short-fused involved support Joint Task Force was tasked to base being migrants smug- terception of Chinese assis- providing here humanitarian gled States. into the United Cuban Haitian and tance thousands Bay, , History, at A Brief Guantanamo Signal, migrants ... Since Sea Guantana- (last http://www.nsgtmo.navy.mil/Default.htm migrant Bay operations has retained a mo 10, 2003). visited Nov. steady migrant popula- mission with a state (1990). wholly that, operation Accordingly, unrelated reasons we conclude un- coaling any reading, of a naval station. der base Johnson does not bar this jurisdiction Court’s over Gherebi’s habeas “sovereignty” supreme, If is “the abso- petition. lute, by power and uncontrollable which any independent governed,” state is “the 4. The Guantanamo Lease Trea- power everything to do in a state without ty and the Panama Canal Zone accountability,” or from “freedom external Treaty autonomy, control: independence,”21 it Our conclusion that habeas no appear stronger would there is by lies in this is a compari- case bolstered example of the United States’ exercise of son of the Guantanamo Lease continu- “supreme power,” or the adverse nature of ing Treaty and the Panama Canal Zone power, occupying country’s its than this Treaty. two contemporaneously The ne- purposeful actions contrary terms of gotiated agreements are unparalleled objections the lease and over vigorous respect to the nature of the cession of powerless of a “lessor.” See also New * quintessentially (“The powers Jersey, 291594, at 1997 WL year States. Concluded the same plain ordinary import by the Theodore exception authority without Roosevelt administra- of a tion,22 the sovereign.”). Any Guantanamo and Canal Zone honest assessment of agreements widely are as substan- authority nature of United States’ viewed See, today tially e.g., control in similar. only Op. Att’y allows Gen. (1929) one (noting conclusion: the U.S. exercises all of the Canal Zone agreement “the basic full appear territorial “would to be no less attributed Reina, sovereignty.” See Duro comprehensive grant than the lease from 676, 685, Cuba”).23 109 L.Ed.2d agreements provide Both Dictionary sovereign- 21.Black’s signed by Law defines 22. The Guantanamo Lease was ty, pertinent part, as: February President of Cuba on 1903 and absolute, supreme, The February and uncontrollable President Theodore on Roosevelt power by any independent which state is Treaty 1903. Canal Zone was con- governed; supreme political authority; 18, 1903, cluded on November and was sub- supreme power ... everything will to do by sequently signed President Roosevelt and accountability in a state without ... It is February ratified the Senate in 1904 before power supreme citizen is being proclaimed February governed person body per- and is the sons state politically to whom there agreements Like the 1903 Lease and con- superior. By sovereignty largest no in its tinuing Treaty governing the terms of U.S. absolute, supreme, sense is meant uncon- Guantanamo, 9, supra control over note Arti- power by ... trollable the itself word comes cle II of the Convention for the Construction being nearest to the definition of “sover- Ship (Hay-Bunau-Varilla of a Treaty) Canal eignty” applied will or volition to cedes U.S. temporal to the without limitation political affairs. power authority all and Zone. the In the (emphasis 1396 add- Dictionary Black’s Law Zone, purpose case of the Canal the was “for ed). construction, maintenance, operаtion, the Similarly, Webster’s Third International de- protection sanitation and said Canal.” sovereignty, part, fines in as: relevant the Ship Convention for Construction of a (2)(a)(l): supreme power, esp. body over a Canal to Connect the of the dominion, Waters Atlantic politic: sway Oceans, 18, 1903, and (a) Pacific Nov. U.S.-Pana- external control: autono- freedom from ma, II, 2234, art. Stat. my, 33 T.S. 431. independence Article ... for, alia, provides (c)controlling pay- XIV inter influence the annual during ment the life 2179 of the Convention of two Dictionary Webster’s Third International added). (emphasis Id., fifty hundred and thousand dollars. art. term, rights, power, “all the and control over but all ceding the dominion limitation, temporal authority” the Zone that within would territory the without if it “to the particular sovereign, limits use to a have entire and each right of by Republic the U.S. the of the exercise the Both afford exclusion purpose. right purchase the to any rights, domain and of Panama of such eminent provide yearly ...” power authority Both or to property. real omission specified ceding to the nation payments passing sovereignty ivords expressly use Only voluntary act the agreements. by public policy, was dictated reasons of could, assume; the of the United States part on I but whatever the the reason agreements, the two given the terms of sovereign- treaty gives the substance of to restoration the result the containing ty, and instead of a mere country.24 ceding the sovereignty, the transferring declaration particulars to “all the the descends the Panama Conven- the terms of Under authority” power, and that be- rights, tion, eyes the of our negatives any sovereignty, to long time, sovereignty of the Canal Zone “the rights, au- “sovereign power, such or open question.” or doubtful not an [wa]s sovereign. former thority” the 1907). 7, 376, (Sept. Op. Att’y Gen. 1907) As the passed It to the United States. (Sept. (emphasis Id. at 377-78 Attorney opined: added). General Similarly, the Guantanamo Lease Treaty all of continuing to transferred treaty transfers the

Article 3 States, authority together eon- sovereignty by power Roosevelt, agreed to Agreement, supra Franklin Delano Supplemental XIV. Cf. that, alia, (providing pay- inter limited busi- I for the lease additional terms note art. Cuba). enterprises Zone ment Canal to those ness (and directly with connected the canal lim- of the 1903 Guantana- to Article III Similar who of truck farmers had estab- ited number Lease, Zone Con- mo Article III of Canal treaty). prior their Gen- lished farms provides: vention further Treaty Cooperation Friendship and eral grants Republic Unit- of Panama Between the United States of America power, rights, all and authori- ed States Panama, 2, 1939, U.S.-Panama, 53 March ty and described within the zone mentioned Supple- Stat. T.S. No. 945. agreement Cf. II of and within in Article Agreement, supra note art. Ill mental auxiliary lands and waters the limits of all (limiting enterpris- and industrial commercial II and described in said Article mentioned Base). At es the same on possess United States would which the time, Treaty preserved the 1939 Article XI of sovereign of the terri- if it were the exercise obligations respective rights and tory are within which said lands and waters agreement original parties under of the exer- located to entire exclusion U.S., including, case all Republic of Panama of such cise pertain sovereignty. ordinarily rights that authority. rights, power, or Cuba, Moreover, Id., Treaty Defining with su- Relations III like Article art. III. Cf. Lease, (continuing pra Ill the 1903 supra Arti- note art. 1903 Guantanamo note agreements governing the Guantanamo goes provide the U.S. “the lease cle VII Base). acquire by purchase the exer- domain, any cise the of eminent of fact, did, return the Canal 24. U.S. in lands, The buildings, rights prop- water or other 1999, after to Panama in December Zone necessary and convenient for con- erties years by maintenance, protests Panamanians over struction, of operation pro- and Treaty and cession of 1903 its unfairness works of of the Canal of tection territory United States. Id., to the of Panamanian art. VII. sanitation[.]” 7, 1977, Treaty, Sept. Panama Canal treaty See subsequent a executed in Under Panama, (establishing the signed U.S.T. 47 33 by 1939 the same President U.S.— re-transfer). Cuba, continuing for the 1999 Treaty with President basis 1934 1298 ¶ (a)(1), “sovereignty,” (Advisory trans- Note

stitute therefore to Subdivision 9 1344, (citing 1345)), §§ 48 former sovereignty Att’y See U.S.C. Op. ferred itself. 25 (1905) by and issued final decisions reviewable 441, (stating 444 Gen that the “Ca- of Appeals. the Fifth Circuit Court See 28 juris- nal is now the sovereign Zone within § Both U.S.C.A. the Canal Zone States”) (emphasis of diction the United court the Fifth district Circuit had (Jan. 113, added); Op. Att’y 26 Gen. 116 jurisdiction to petitions hear 30,1907) (“Unquestionably II and [Articles in detainees the Zone. v. See Voloshin treaty upon United imposed II] (5th Cir.1924) Ridenour, (re- 299 F. obligations pow- States the well as the viеwing petitions against three habeas territory ers of a within the de- Zone). Marshal U.S. for Canal This scribed[.]”) added); (emphasis Op. Att’y jurisdictional in regime continued exis- 24,1908) (July (referring Gen. 1979, when, “by until tence October “sueceed[ing] sovereignty U.S. as Treaty, Panama Canal the United States Zone) territory” in (empha- the Canal relinquished sovereignty over the Canal added); Att’y 41 Op. sis Gen. 49-50 Egle, (emphasis Zone.” 715 F.2d at 1010 (1916) (“[T[he treaty pat- itself ... is the added). supra See note 24. ent ... which ac- the United States practical imple- Information about the quired its sovereignty property rights jurisdictional regime mentation of the Zone”) added).25 in (emphasis the Canal in exists Guantanamo is comparatively Convention, Pursuant this 1903 sparse. supra But see note As we system a complete United States created 11(A)(1), explained have in Section howev- Zone, for Egle courts the Canal see v. er, pursuant to Article IV of (5th Egle, F.2d 1011 n. 15 Cir. Supplemental Agreement, the United 1983), including a District for U.S. Court States exercises exclusive over Zone, legislative the District the Canal citizens and aliens alike who commit court which exercised both federal and on persons crimes the Base. Such are sub- foreign local over citizens and ject to trial for their in offenses alike, Agreement nationals see Fed. R.CRim. Proc. 54 States courts.26 Under government places 25. The much reliance on terial to its was discussion. Court con- opinion struing in the "territory possession comments volunteered Court's the term Connell, Vermilya-Brown Act, v. the United as used States” (1948), 93 L.Ed. 76 a case in sweep covering territory it a afforded broad the Court which held the Fair Labor sovereign juris- which the over U.S. exercised applies performed Act Standards to work territory diction as well as it did territory in Bermuda leased for use a mili holding applied not. Its was the FLSA tary years. Bermuda, base for a finite term of as it did in and the Agreement Exchanges of Notes Between light, Zone. Canal Viewed do not the United States of America and Great Brit believe that the would its Court consider ob- Bases, Respecting ain Leased Naval and Air regarding similarity servations the vari- 27, 1941, Britain, Mar. U.S.—Great 55 Stat. agreements ous to constitute determination Vermilya-Brown, E.A.S. No. 235. dispositive of a fundamental issue of law accepting, purposes opinion, after rights. important constitutional Nor do we Secretary view that the did State’s expect that it would the lower courts believe sovereignty not obtain Bermuda, over the them as treat such. the Court likened the Bermuda agreements involving military per- lease to the entered into 26. Crimes on the base Vermilya- typically Navy- Cuba and Panama. sonnel are handled a U.S. See, Elmore, legal Corps Brown no e.g., had occasion rule on the Marine Court. (Court (2001) Ap- status of either Cuban or Panamanian 56 MJ 533 of Criminal agreements, (1987) regarding peals); Bobroff, and its comments their U.S. v. 23 MJ 872 similarity (Court Review). to Military the lease ma- of Bermuda were not Base command- Guantanamo, to continuing Treaty, simply provides is one further required Cuba why compelling unwilling reason we are to any per- authorities turn over to the U.S. the of Cubans, close doors the courts sons, an including who commit claim. to Gherebi’s habeas 9. supra note at Guantanamo. See offense Zone, That, of the in the case the Canal Question Limited of Nature a court located physically U.S. established Presented of in whereas in the case emphasize We wish to the case it used the services of U.S. require before this Court does not tous the mainland of no located on courts petition challenging consider a habeas critical is that legal significance. What is military of a case decisions tribunal —a instances, the United States exer- both might raise different issues. Unlike jurisdiction the territo- cised criminal over Johnson, petitioners even ry persons present, there and the Quirin, Yamashita and Gherebi has not aliens applied U.S. criminal statutes to subjected military Nor been trial. has citizens alike. In such circum- government employed the other time- stances, why it is to understand difficult dealing tested alternatives for with the subject persons prose- who are to criminal circumstances of war: it neither treat- has States for acts com- cution United (and prisoner ed Gherebi as of war not have the mitted at Guantanamo should in fact declared that he is not entitled to for corpus to seek a writ Conventions, rights of the Geneva see wrong against an committed them alleged 7), prose- it supra sought note nor has un- including at the act of that location— special procedures cute him under de- Indeed, lawful detention. Article IV safeguard security. national signed to See Agreement ap- Supplemental would Laden, v. Bin 2001 WL 66393 dispositive jurisdictional pear to be (S.D.N.Y. 2001) Jan.25, (limiting access question before us. information). Instead, confidential sum, similarity between following unprecedented an government agree- Canal Zone Guantanamo and government’s alternative27: under the the- unique of documents ments-—two sets it ory, imprison is free Gherebi indefi- nature their cession exclusive nitely along with of other citi- hundreds and control dominion countries, foreign friendly nations zens support for provides additional them, among and to do with Gherebi and States — our conclusion that lies will, pleases, these detainees as it when claim. The fact the Canal Zone Gherebi’s any any rule of compliance without court and the Fifth Circuit enter- district kind, permitting him to any law without claims constitutional counsel, tained individual both acknowl- consult and without until Panama re-as- judicial non-constitutional ac- edging any forum which its control, Indeed, sumed that U.S. at oral challenged. tions criminal, civil, if argument, have not advised us courts exercised at even if the occurring position its would be same over actions See, e.g., College of Trial Law- required ers to hold civil authorities American are yers, Report Military subject person the Uniform Code Commissions for (Mar.2003)("[T]he place- suspected Military Justice who is Trial of criminal of Terrorists Guantanamo, w[as] ment of the detainees (dis- F.Supp. activity. Rogers, 388 designed judicial scrutiny carefully to evade (1973, cussing Navy Regulations Section and to test the limits of President's consti- 0713)). authority.”). tutional engaging ing claims were that it was in Treaty practical acts of as well the reality as summarily torture or that of the executing it was U.S.’s exercise unrestricted do- knowledge, the minion and the prior compel detainees. To our control over Base that, the for prisoners the conclusion the purposes current detention Guan- jurisdiction, habeas tanamo, government has never is sover- eign territory. grave and startling before asserted such Accordingly, proposition. we view Guanta- B. The of the Jurisdiction U.S. District only unique namo because the as Unit- Court for the District Central of Cal- ed relationship States’ territorial with the ifornia parallel today, Base is without but also govern- because it time that the Having is the first determined that Johnson ment such an extraordinary legal precedent has announced other do not act as a principles position jurisdiction courts, set of so bar to the extreme Article III —a that it gravest raises the concerns we turn now under of whether both American and international the District law. Court for the Central District jurisdiction of California personal has over

6. Conclusion proper respondent this case. The statute, corpus 2241(a), § 28 U.S.C. sum, we hold that neither Johnson v. permits granted the writ to be by district Eisentrager other legal precedent nor respective jurisdic courts “within their precludes jurisdiction our assertion tions.” The writ petition. Although Gherebi’s habeas we agree government with the that the ... legal does not upon prisoner act who relief, status of Guantanamo constitutes the dis- seeks upon person but who jurisdictional positive factor in inquiry, our holds him in alleged what is to be unlaw- we do not Johnson requires find that sov- ful custody.... literally, Read the lan- ereignty simply 224.1(a) § rather than guage requires existence nothing jurisdiction, territorial which unques- more than that the court issuing the tionably Alternatively, exists here. we writ have over the custodi- an,28 conclude that Lease both the and continu- Rumsfeld, Secretary brought by immigration Gherebi names tions detainees is the military charge govern- well as President and other individual Bush national officials, agency auspices ment respondents. govern- under whose civilian alien detained”). While it was the proper President who respondents ment asserts that Department directed the of Defense to con- Pentagon, instant case are military Afghanistan, duct operations only therefore that the court that has territori- is the Department Defense rather than the appropriate al over the custodians (at form) White House that decide will least in is the U.S. District the Eastern whether Gherebi is released from Guantana- not, Virginia. District of has mo. It Department is also the Defense however, petition moved to dismiss custody maintains the Base over all against respondents Secretary other than prisoners. appropriate Because the individu- they Rumsfeld. contend ap- Nor do respondent al gov- the head national propriate respondent is the "immediate custo- agency ernment auspices under whose dian” "ultimate rather than the custodian.” detained, alien is ap- Donald Rumsfeld is the See, Bennett, e.g., v. Sanders 148 F.2d propriate respondent proceeding. We (D.C.Cir.1945); Sec’y Navy, Monk power also note that this Court's to direct (D.C.Cir.1986). 793 F.2d 364 perform President an official act raises agree рroper We custodian is Sec- questions easily constitutional avoided See, INS, e.g., retary Armentero v. Rumsfeld. naming alone. See Franklin v. Secretary Massachusetts, (9th Cir.2003) 340 F.3d (holding respondent (1992). appropriate pett- the "most Accordingly, 120 L.Ed.2d 636

1301 449, 453; ex. F.Supp. Circuit Court v. 30th Judicial Braden cf. Wheeler, D.C., 495, 1123, v. 321 484, Armstrong rel. 93 S.Ct. Kentucky, 410 U.S. added). 471, F.Supp. A court (emphasis 443 35 L.Ed.2d case jurisdiction in a habeas personal 2, (emphasis Id. at 345 n. 92 S.Ct. 1693 reached can be long as the custodian “so added). Shoe, By invoking International Id. process.” by service speaking in terms of “contacts” and process,” court’s the “reach argues, based doc- imported Court Strait standard Seamans, 487, 489, 401 U.S. Schlanger v. jurisdiction into the anal- personal trine of (1971), that 995, 251 28 L.Ed.2d 91 S.Ct. ysis jurisdiction pursuant 28 U.S.C. present physically must be the custodian 349, § 2241. also id. at 92 S.Ct. 1693 See in the Central may he be served so that J., dissenting) (noting that the (Rehnquist, conclud- Schlanger, the Court District. majority held that “the opinion Strait custo- [proper] of the ed that “the absence that have been found to type of contacts Ari- jurisdiction of the is fatal to the dian jurisdiction over nonresi- support state 491, Id. at 91 S.Ct. District Court.” zona like dents under cases [International added). However, year one 995(emphasis juris- would also suffice for habeas ] Shoe 341, 345, Laird, later, 406 v. Strait diction”). 1693, (1972), 141 32 L.Ed.2d 92 S.Ct. Schlanger, see id. distinguished Having established that Secre 344-45, 1693, that habeas and held 92 S.Ct. physically pres not tary Rumsfeld need though the cus- jurisdiction proper is even for the District ent order Central present physically is not todian jurisdiction, the next exercise district, the custodian long relevant Secretary requisite has the whether process. The reach of the court’s is within satisfy the forum “minimum contacts” Court reasoned: statute,29 which extends long-arm state’s “presence” suffice

That such process. of due jurisdiction to the limits settled, jurisdiction is well personal Pro. 410.10. Consti See Cal.Code of Civ. Co., Int’l Ins. 355 U.S. McGee v. concerns are satisfied process tutional due Life 199, 223; 220, Int’l S.Ct. L.Ed.2d has “certain when a nonresident defendant 310, 66 Washington, v. 326 U.S. Shoe Co. such minimum with the forum contacts 95, 154, concept 90 L.Ed. S.Ct. of the suit does that the maintenance regards to not a novel one as play is also fair conceptions of offend traditional jurisdiction. In Ex Parte corpus justice.” v. Int’l Shoe Co. and substantial 208, Endo, 283, 65 S.Ct. 323 U.S. 66 S.Ct. Washington, 326 U.S. (1945). corpus that habeas L.Ed. we said a defen 90 L.Ed. 95 Where respondent who has cus- may issue “if in the forum are substan dant’s activities tial, continuous, general is within reach of tody prisoner systematic, available, foreign com- process-” court’s Strait’s on mat “present” subject Califor- to suit even manding officer is defendant is State; contacts with in that unrelated to his or her through nia his contacts ters Benguet v. Consoli the forum. Perkins he is therefore “within reach” Co., Mining his dated court in which Strait filed federal (1952). Here, Laird, the activi- 96 L.Ed. 485 petition. Donigian (9th Cir.2001), Corp., 248 F.3d 915 analysis Secretary were Unocal our as if the conduct single respondent reh’g granted opinion in this case. vacated named en banc (9th Corp., 2003 WL 359787 Doe v. Unocal analysis personal an For Cir.2003). law, generally Doe v. California see under might trict or Secretary depart- Rumsfeld and the division where have been ties of continuous, substantial, 1404(a); § brought.” 28 U.S.C. ment he heads are cf. 1406(a) § throughout (providing the state of U.S.C. for transfer systematic laid).31 largest wrongly making num- where venue is In has California: California (six- transfer, military facilities in the nation the decision to ber of major military installa- ty-one), including a ac- preference court must balance the laboratories, tions, of Defense Department plaintiffs corded the choice of forum facilities. California’s testing See litigating with the burden of in an incon- Trade, Agen- Technology, and Commerce venient forum. The defendant must Resources, Community cy, Business & strong showing make a of inconvenience Revitalization, Military Base upsetting plaintiffs to warrant (last http://www.commerce.ca.gov/state/ttca part inquiry, choice of forum. As of this 2003). 10, Many of these visited Nov. private the court should consider carried out in the Central activities are affecting public interest factors the con- Accordingly, we District of California. venience of the forum. Private factors Secretary has the conclude that Rumsfeld include the “relative ease of access to satisfy “minimum contacts” to requisite proof; availability compul- sources of statute, ‍​​‌​​​‌‌‌‌​‌​​‌​​‌‌​​‌‌​​‌​‌​​​‌​‌​​​​‌​​‌​‌​​‌‌‍long-arm and we hold California’s sory process unwilling; for attendance that the United States District Court for obtaining and the cost of attendance of jurisdiction District has over the Central witnesses; willing possibility of view of custodian, Secretary nominal Gherebi’s premises, if appropriate view would be 2241(a). Rumsfeld, § purposes action; practical and all other problems that make the trial of a case C. Venue easy, expeditious inexрensive.” Gilbert, 501, Although Corp. we hold that John Oil v. 330 U.S. Gulf (1947). jurisdiction son does not bar habeas 67 91 L.Ed. 1055 S.Ct. that the further determine Central District Public factors include “the administra- jurisdiction may personal flowing exercise tive difficulties from court con- over Secretary, question of presents gestion; having venue the ‘local interest lo- final, home;’ government a additional issue. The at calized controversies decided suggested might that we trial having transfer interest di- petition Virgin versity to the Eastern District of case in a forum that is at home applicable govern ia.30 The rule is that “for the with the law that must the ac- witnesses, tion; unnecessary parties prob- convenience of the avoidance of laws, justice, applica- the interest of a district court lems conflict of or in the any any foreign transfer civil action to other dis- tion of law and the unfairness of fact, 1404(a). Thus, only § it was in a footnote that motion to transfer under government urged that the case be trans- only unique because of the circumstances ferred, only and then for want of surrounding appeal this that we mention the § § under 28 U.S.C. 1631. Because 1631 issue, although we do not resolve it here. see, subject jurisdiction, e.g., relates to matter U.S., Puget Energy, Sound Inc. v. F.3d 1406(a), § Under 28 U.S.C. if a case is (9th Cir.2002), subject and because district, wrong filed in the district court petitions matter lies dismiss, “shall or if it be in the interest of courts, reject in all of the district justice, such case to transfer district argument. pursuant of transfer division in which it could have been 1404(a) § presents U.S.C. to 28 distinct Russell, brought.” King 963 F.2d issue, party however. Neither has addressed (9th 1992). Cir. 1303-04 question, nor has the filed a the immediate control over the person unrelated forum with citizens in an burdening Aircraft, 454 duty.” Piper power ‘produce’ has the literal jury prisoner (quoting 241 n. body generally and is located in the 509, 67 S.Ct. Corp., Henderson, petitioner.” place same Gulf Oil 839). Here, however, ques- 157 F.3d at 122. significantly complicated. more Edison tion is v. Commonwealth Decker Coal Co. (9th Cir.1986). Co., being held place prisoner F.2d where are considerations of the above Some and in which the immediate custodian is habeas cases. applicable clearly possible not a suitable or even located is matter, Moreover, district general venue; instead, a next-friend habeas mov- required not to “determine court is ant, California, on petitioning resident of is venue,” Adjusters, v. & S Bates C best of prisoner of a held outside behalf Cir.1992) (dis- (2d Inc., 865, F.2d 867 980 confines of the United States. physical statute, 28 venue cussing general Also, case, con- in this factors such as the 1391), transfer under § U.S.C. parties of and witnesses and the venience 1404(a) freely granted.” § not be “should proof of access to sources of cannot ease (8th 56, Mile, Ltd., F.2d 61 Nine 692 In re with the same ease and trans- weighed be 1404(a) Cir.1982). provides Section typical habeas parency afforded forum, “not to a more convenient transfer Finally, public interest proceeding. conve- likely prove equally to a forum factors, may impor- critical be of inconvenient,” Dusen v. Bar- Van nient or here, possible not tance are such that 646, 805, rack, 612, 11 84 S.Ct. 376 U.S. until after the adequately them to evaluate (1964), and a “transfer should 945 L.Ed.2d arguments presented its simply to if the effect is granted not be in court. the district resist- party to the shift the inconvenience short, here, appro- of the In Further, there is a transfer.” Id. ing the involves different consider- priate venue plaintiffs in favor of strong “presumption ordinary present than are in the Oil, ations forums.” 330 U.S. choice of Gulf pres- respondent must Rumsfeld’s 508, This case. While presumption 67 S.Ct. 839. deciding Virginia of into account when Eastern District be taken ence parties blush, of the the convenience to warrant might appear, whether at first —(cid:127) respon- of than the convenience district, may rather sub- that there transfer to requires a transfer. weigh that considerations will stantial dent — proper determining of venue favor case, problems habeas typical In the of California.32 in the District the fact that “the Central simplified by are venue of Guantanamo concern transfer example, movant and mate 32. For both the habeas California, petitions Eastern detainees' individual see his counsel are located Gulf (location jurisdic- Oil, Virginia could flood District U.S. at 67 S.Ct. 839 330 consider); capability district "beyond the v. tion Padilla movant a factor to fashion,” (S.D.N.Y. timely see process in a court to Rumsfeld, F.Supp.2d 587 233 127; Strait, Henderson, 406 U.S. 2002) (location F.3d at 157 counsel a factor to consid 1693; danger conversely, the er), 92 S.Ct. District court is and because the Central case, may pose significant forum-shopping transfer already familiar with the venue doctrine because traditional delay. Savage, F.2d risk here CFTCv. 611 lead to Further, suits are (9th Cir.1979). that these next-friend would insure neither of brought of residence bearing in the district “particularly important” factors two Henderson, movant, 157 F.3d at see venue in alien habeas on convenience and Armentero, F.3d at 1069- also weigh 127. See appear in favor of transfer cases hand, legiti- is a on the one there this case: event, government has not formal- the Court from the views of the “benefit[s] ly pursuant to transfer to 28 U.S.C. moved Appeals”); United States v. Courtfs] 1404(a) appropriate § forth the evi- put Mendoza, 154, 160, 464 U.S. S.Ct. ease;33 parties support dence to its (1984) (noting 78 L.Ed.2d 379 issue; not briefed this and no court have Ap Court benefits when several Courts of has had occasion to consider the relevant peal prior Supreme hear an issue bearing factors on venue such as ease of review); E.I. du Pont de Nemours & Co. proof access to sources of and the conven- Train, 112, 135, obtaining cost of Fi- ience and witnesses. (1977)(lauding L.Ed.2d the “wisdom nally, public interest factors allowing through difficult issues to mature may require particularly case careful scru- full of appeals” consideration the courts tiny complete once the record is before the noting having variety per questions district court. All of these are task”). “vastly can spectives simplify] our resolved, instance, by best first impor courts have noted the Circuit also court, express no district we view examining impor tance of several circuits’ proper Accordingly, outcome here. legal questions Supreme tant before the remand to the Central District to deter- Court makes a final determination. Va. proper, whether venue is mine should FEC, Soc’y Life, Human Inc. v. 263 government renew its motion in that fo- (4th Cir.2001) (emphasizing F.3d rum. that from opinions multiple helps circuits develop “important questions of law” and desirability exploration D. The of a full Supreme that the Court benefits from “de jurisdictional issues appeals”); cisions from several courts of Appeals. Courts Atchison, Pena, T. Ry. & S.F. v. 44 F.3d that dissent asserts we should defer (7th Cir.1994) (Easterbrook, J., our decision in this case until after the concurring) (noting conflicting deci Supreme pending Court has decided the ... “among sions the circuits [lend] detainee in case which certio- Supreme Court benefit of additional [the] granted. rari has been Al Odah v. United legal probability views increase the States, (D.C.Cir.2003), 321 F.3d 1134 cert. disposition”). a correct This is especially — U.S.-, granted, S.Ct. here, given importance the case of the (Nov. L.Ed.2d 2003 WL 22070725 issue, opinions, the dearth of considered 2003). strongly disagree. We The Su- reasoning and the conflict views and preme always encouraged Court that, as a result of our opinion, will now be Appeal Courts of properly resolve issues Supreme available to the Court. before them advance of their determina- Court, Supreme reasoning tion III. CONCLUSION having variety a perspectives considered We hold that the district court erred in will aid the ultimate Court’s resolution concluding, based on Johnson v. Eisen in question. the issue 52, 66, trager, that no district court would have Sperry Corp., 493 U.S. (1989) (noting 107 L.Ed.2d 290 petition. over Gherebi’s habeas party seeking clearly anticipated testimony 33. The the transfer must of the witnesses' specify the essential witnesses to be called accessibility then determine their and conven- general and must make statement of what Wright, ience to the forum. See 15 Charles A. testimony determining their will cover. (West § al., et Fed. Practice & Procedure witnesses, the convenience the Court 2003). materiality importance must examine A may straightforward reading District of Johnson that the Central also hold We “sovereignty” makes it clear that is the case because exercise law, touchstone, under current for the ex- subject to ser- Secretary of Defense is jurisdiction. ercise of federal courts’ As long- under the California process vice of Supreme explained, petition- Court Finally, we remand to the arm statute. bring could not ers Johnson ques- district court for consideration crimes, they petition because committed to a different district tion transfer whether tried, captured, being and were were than the Central District California “any territory detained outside over which appropriate. be would sovereign.” the United States is Id. at AND REMANDED FOR REVERSED 777, 70 S.Ct. 936. CONSIS- FURTHER PROCEEDINGS majority proposi- invents novel TENT WITH THIS OPINION. that, Supreme tion because the Court used jurisdiction” phrase “territorial more GRABER, Judge, dissenting: Circuit “sovereignty,” often than it the term used I dissent. regret, respectfully must With concept governs the former and the latter opinion con- The second sentence of its disregarded. Maj. op. at 1287-88. key majority’s errors tains the here: not, view, phrases my Counting to confront required “The issues we are analyzing valid method of the Court’s Maj. new, important, are and difficult.” meaning. that we Although the issues op. way in telling More is the which the difficult, they important are confront enemy in which distinguished cases are not not Because the issues are new. bring peti aliens were allowed new, by existing Supreme we are bound courts, tions in federal cases like Yamashi precedent, majority which the mis- Court (In Yamashita), 1, Styer ta v. re 327 U.S. important Because the issues are

reads. (1946). 340, In 66 S.Ct. 90 L.Ed. 499 difficult, decid- Supreme Court has the Court held that Yamashita Johnson them, we await the ed revisit should Yamashita, because, different was imminent decision. Supreme Court’s “sovereignty” had over the United States and, was held place petitioner where Eisentrager 1. v. Johnson therefore, jurisdic courts had federal “[b]y sovereignty.” tion reason of our 763, Eisentrager, In v. Johnson Johnson, 780, 339 70 S.Ct. (1950), 936, 70 94 L.Ed. 1255 S.Ct. only distinction on “Sovereignty” was the enemy held that an alien Supreme Court be, may relied. There Johnson who was detained the United States majority argues, possible other distinc bring petition military overseas could tions, they were of no moment to the but corpus in the courts of the for habeas Court, must opinion whose Johnson jurisdic- lack Our courts United States. construe. circumstance, sole tion in that and the short, remedy enemy pre- alien lies with the holding for the Johnson juris- exercising Id. at from political government.1 branches of cludes federal courts 779-81, enemy an alien who is de- diction over 70 S.Ct. 936. -, (2003) L.Ed.2d 407 have reached the 124 S.Ct. 157 1. Two of our sister circuits ") (consolidated); v. ("Al identical conclusion. See Al Odah United Bar Cuban Am. Odah States, (D.C.Cir.2003), 321 F.3d 1143 (11th Christopher, 43 F.3d Ass'n v. --, granted,-U.S. S.Ct. cert. 1995). Cir. ”), (2003) ("Rasul and-U.S. L.Ed.2d 407 always sovereign who has been—outside of the United tained —and territory of Maj. the United op. States.” at 1290. There are two Only Supreme Court States. things wrong with that sentence. modify “sovereignty” rule established First, be, place it is unclear how a can Quijas Rodriguez See de v. Johnson. is, majority implies part Guantanamo Inc., Express, Shearson/Am. sovereign territory “the of the United (1989) 1917, 104 L.Ed.2d 526 purposes States” for habeas but not for (“If a of this Court has direct precedent purposes. “sovereignty” other The case, yet appears in a to rest application requires appears Johnson to be the ordi- rejected in other line of on reasons some nary Dictionary kind. Black’s Law Cf. decisions, fol Appeals the Court of should (7th ed.1999) (defining “sovereignty” controls, directly leav low the case which dominion, Supreme authority, as: “1. ing prerogative over this Court supreme political authority rule. 2. The decisions.”). majority The ruling its own itself.”). an independent state. 3. Thе state Supreme authority cites no in which Second, is no fundamentally, Court has declared Johnson and more Guan longer good law. sovereign territory tanamo is the of Cuba. treaty explains The relevant that “the Supreme granted certio- Court recognizes the continuance appeal presents rari in a consolidated sovereignty Republic ultimate an for the to revisit opportunity Cuba over the above described areas of rule. Al “sovereignty” Johnson’s States, Agreement land and water.” Between the 321 F.3d 1134 Odah (D.C.Cir.2003), United States and Cuba for the Lease of supra note Until the Su- otherwise, Stations, preme Coaling Court informs us howev- Lands for and Naval er, key inquiry 16-23, 1903, U.S.-Cuba, III, remains whether the Feb. art. T.S. (“Guantana- Bay (“Guantanamo Lease”) Naval Base No. 418 (emphasis mo”) sovereign territory added).2 of the United

States. majority’s interpretation problematic Guantanamo Lease is because Bay

2. The Status Guantanamo Na- majority phrase takes the “ultimate val Base sovereignty” already out of context. I a. The Lease Guantanamo have cited the definition of “sovereignty.” (i) Recognizes the The 1913 version of Revised The Lease “Continu- Webster’s Sovereignty” by Unabridged Dictionary

ance Ultimate offers these defini- Cuba Guantanamo. Over tions for “ultimate”: “that, Farthest; at 1. majority space The concludes least most remote or time; extreme; last; purposes, for habeas is a part Guantanamo final. Lease, ditionally, Treaty

2. In addition to the Guantanamo other the 1934 U.S.-Cuba main- agreements between the United States and "supplementary agreement tained that the governments Cuba are relevant. The two regard coaling signed to naval or stations 2, 1903, agreed July the so-called "Par- July between the two Governments on Treaty,” allel the condi- "conclude[d] 1903, also shall continue in effect in the same February signed tions of lease” 1903. respect form and on the same conditions with Coaling Lease of Certain Areas for Naval or Treaty to the naval station Guantanamo.” Stations, 2, 1903, ("Parallel July T.S. No. 426 Between the States of America Treaty”), pmbl. Treaty The also set Parallel Relations, 29, 1934, Defining ‍​​‌​​​‌‌‌‌​‌​​‌​​‌‌​​‌‌​​‌​‌​​​‌​‌​​​​‌​​‌​‌​​‌‌‍May Cuba Their (such additional terms as the amount of annu- U.S.-Cuba, Ill, art. 48 Stat. 1683. rent) affecting al Lease. Ad- grounds or ment and the thereof on the progression in a train of 2. Last toward all consequences; tended record. result; at, the last arrived precedes; only Id. 313. The definitions that make final. present sense context are the first analysis; incap- further Incapable of 3. obsolete, being and second ones—the third separation; or of further division able being obviously and the fourth irrelevant. constituent; elemental; as, an ultimate Thus, the Lease’s use the word “contin- of matter. constituent ongoing uance” denotes the nature of Dictionary Unabridged Revised

Webster’s sovereignty” Cuba’s “ultimate over Guan- (1913), http://humanities.uchica- tanamo. go.edu/forms_unresVwebster.form.html. majority’s attempt explain away The majority the Lease’s use of The reads the contextual use of the words “continu- (“most temporal sense “ultimate” unpersuasive. ance” and “ultimate” is The time”). context, in ... howev- remote majority the Lease to reads vest Cuba er, using I that the Lease is “ulti- believe only “contingent sovereign interest —a “extreme,” “incapa- mate” in the sense of reversionary right springs being into separation,” or or ble of further division termination of the upon lawful is, key That to understand- “elemental.” reign. reversionary It is this interest that is to ing phrase sovereignty” “ultimate (or quali- is ‘continued’ even as substantive significance of the contextual recognize the tative) .sovereignty is ceded to the United term “continuance.”3 Maj. op. at 1293. States.” these defini- dictionary The 1913 offers might have created such a Lease tions for “continuance”: reversionary right (although I read it dif- on, par- in a holding remaining 1. A or ferently). logically But the Lease could state; of condi- permanence, ticular a right, not have continued such because habits, abode, etc.; tion, perseverance; “reversionary” right no such existed before duration; constancy; stay. (when signed Cuba indis- Lease was succession; continua- Uninterrupted was the sole over Guan- putably [sic]; tion; perpetua- renewell constant tanamo). tion; propagation. contrast, if “ultimate” refers not to By continuity. holding together; 3. A reversionary temporal activation of [Obs.] elemental, interest, ongoing indivis- but (Law)(a) adjournment phrase sovereignty, ible whole proceedings day, in a cause from one —“the sovereignty of the ultimate court, continuance term of a to from one stated another, (b) the Guantana- entry adjourn- Republic of Cuba”—in The such Gutierrez, 942, (9th 311 F.3d 949 n. 15 of the Vienna Conven- 3. Under Article 31.1 zalez v. Cir.2002). tion, good treaty interpreted shall be "[a] ordinary faith in accordance with the mean- the Lease is better seen as To the extent that treaty contract, ing given give to be to the terms of the require us to similar rules light object of its meaning. Waterbury, their context word See Cree v. each 1400, (9th Cir.1996) purpose.” (explaining Vienna Convention on the Law of 78 F.3d 1405 31.1, Treaties, May art. 1155 "a court rule of construction that contract (Jan. 1980) (emphasis every add- give U.N.T.S. 331 to word or term em- must effect ed). sig- Although parties reject none as ployed the United States is not Convention, arriving meaningless surplusage at the natory it to the Vienna or (internal contracting parties” apply policy the United States to Articles 31 intention of the omitted)). quotation customary marks 32 international law. Gon- 1308 contemporaneously signed Spanish makes sense. The Lease is The

mo Lease supports version of the Lease a substan- discussing the continuance of the elemen- tive, than temporal, understanding rather tal, sovereignty indivisible of Cuba with strongly of the term “ultimate” even more respect to Guantanamo.4 English than the version. See United The drafters of the Lease wanted to Percheman, (7 Pet.) 51, 88, State 32 U.S. that, although make clear the United (1833) (“If L.Ed. English 604 and the granted powers that often run States was can, violence, Spanish parts without jurisdic- sovereignty (e.g., “complete agree, made to that construction which control”), tion in fact Cuba was retain- conformity establishes this ought pre- ing sovereignty all over Guantanamo for vail”). Spanish disput- version of the say, That is to ulti- itself. Cuba retained text ed reads: “Si bien los Estados Unidos mate, elemental, or or indivisible sover- por parte reconocen su la continuación de eignty, despite the fact that the United República la soberanía de la de definitiva act, facto, be allowed to States would de Cuba.” Convenio de de Febrero de 16/23 lot like a would act. República y Entre la de Cuba los majority’s concerns about what the Estados América para Unidos de arrendar “ultimate” could concept word add to the (bajos á los Estados Unidos las condiciones 1291-92, “sovereignty,” maj. op. are que habran de por convenires los dos Gobi- misplaced. goes great thus The Lease ernos) tierras para en Cuban estaciones pains explain sovereignty all navales, Tratados, y carboneras Convenios Guantanamo is “unbundled” from the (Habana 1936) y (еmphasis Convenciones rights jurisdiction and control. Cuba added). dispute There is no that “sobera- keeps continually, the former while the nía” “sovereignty” refers to or that “con- enjoys the latter. The word tinuación” equates English cognate purpose “ultimate” prevent- serves “continuation.” The word “definitiva” is ing asserting the United States from adjective the feminine form of the “defini- legal sovereignty deriving from tivo,” which meant to a reader at the time enjoys. and control that it “[djícese decide, que de lo resuelve o con- “ultimate,” the absence of word one cluye”: a term used to describe that which could conclude that Cuba had handed over decides, resolves or [a concludes matter]. only rights con- Lengua Diccionario de la la por Castellana trol, (Decimocuar- underlying sovereignty but also the Española Real Academia ed.1914). authority that forms the basis for the to ta contemporaneous Spanish- A (or, here, enjoy to transfer the to-English dictionary translated “definiti- (not enjoy) rights. surprisingly) those vo” as “definitive” Sovereignty always all-or-nothing immunity.” Aqueduct is not an P.R. & Sewer Auth. v. concept. sovereignty" "Partial and the con- Inc., 139, 146, Eddy, & 506 U.S. Metcalf "joint sovereigns” current existence of are (1993); S.Ct. L.Ed.2d see also concepts well-established in American law. Auth., Fed. Mar. v. S.C. State Comm'n Ports example, concept For of less-than-com- 743, 765, plete sovereignty at is the heart of our federal (2002) (explaining L.Ed.2d 962 that the cen system: "sovereign” the States are but sub- purpose sovereign immunity tral doc ject requirements imposed by the Federal respect trine is to "accord the States the owed Thus, Supreme Constitution. Court has (internal joint sovereigns” quotation them as explained purpose of the Eleventh Amend- omitted)). Thus, theory, marks Cuba could being recognition ment as a "rooted in some, all, union, States, sovereign have ceded but not of its although a maintain certain sovereignty, including sovereign ty attributes of over Guantanamo to the United States. Indeed, Dic- it would odd for a Pronouncing landlord. be A New “determinate.” sovereign “occupying” to be described as Lan- English tionary Spanish lands; instead, usually the term its own (1908). time, “defini- At the guages 209 by of control na- means the exercise one to mean primarily understood tive” was sovereign territory tion over the of anoth- conclusive; final; “[djeterminate; positive; er. unconditional; at 382. express.” Webster’s if Additionally, the United States were a as was defined Similarly, “determinate” sovereign, permissibly it could do true limits; not uncertain or defined “[h]aving at that it not many things Guantanamo is established; fixed; defi- arbitrary; instance, to do. For the United entitled decisive; Id. nite[;][c]onclusive; positive.” may permissibly change the use States could Although temporal a sense at 401. (say, by raising commercial of the land definitions, their out of those squeezed if the United States were sover- crops);5 that the issue meaning natural most If eign, crops. it could raise commercial resolved, decided, or con- sovereignty was abandoned, ends property the lease in favor of Cuba. cluded automatically;6 if the were United States sovereign, it could allow the land to lie idle (ii) Suggest the Lease Terms Other jeopardizing sovereignty without its Sovereignty Retains That Cuba right property to use the its concomitant Over Guantanamo. al- later. trade vessels must be Cuban of the Lease demon- provisions Other if the passage;7 lowed free United States currently enjoys sover- that Cuba strate sovereign, it could choose to refuse III of Article eignty over Guantanamo. for eco- passage to another nation’s vessels that Cuba consents the Lease states nomic, or other reasons. The political, jurisdiction and exercise of United States’ rent; if pays it were sover- “during peri- control over Guantanamo legal right have the to use eign, it would by States. occupation” the United od of paying the land without another dictionary defines “oc- The 1918 Webster’s annually privilege. for the The Unit- state (in The act part) relevant as “1. cupation” enjoyed rights never has these ed States Cuba, relin- occupying taking posses- sovereign, or as never process or because control; quished them. sion; possession actual keep- being occupied; holding state of majority asserts United tenure; use; as, occupation ing; the terms repeatedly breached States at 994. by lands tenant.” Webster’s using other of the Lease States, Thus, “occupier,” coaling an United as than a naval base and station. majority rea- Maj. at 1294.8 The then op. rather than a enjoys the status of a tenant Lease, ("The 8.Although violat- grant the United States have II ... 5. Guantanamo art. ways, holding ... to do and all shall include the ed the Lease in number neсessary premises for use as things to fit the appear to prisoners at Guantanamo does not coaling only, and no or naval stations Lease, the United of them. Under the be one added)). purpose." (emphasis other Navy at to maintain a base States is entitled commonly Navy contain bases Guantanamo. ("The Treaty, States art. I 6. Parallel See, Brig: prisoners. e.g., A brigs to hold agrees pay to the and covenants to of America Tradition, Year Two Hundred Republic Cuba the annual sum of two thou- http://www.brigpuget.navy.mil/history.htm States, dollars, coin of the United sand in cold 11, 2003). (last Using Guan- occupy visited Dec. long and use as the former shall agree- brig prisoners areas of land virtue of said to hold thus seems said ment.”). tanamo provi- to violate the Lease's first blush not sions. Lease, 7. Guantanamo art. II. tenancy an by happened here. Even a life or sovereignty is demonstrated

sons that repeated violations convey simple States’ option buy United does not fee Maj. at 1294. That conclu- op. the Lease. tenant. ownership not follow. sion does Hay-Bunavr-Vanlla Treaty b. The political or lacks the

The fact that Cuba necessary to hold the Unit- military might majority The seeks to bolster its conclu- breaching responsible ed States part that is of the sover- sion the United Lease does not mean territory by of the re- eign or that the Lease States has not breached ferring Hay-Bunau-Varilla to the 1904 ability The has ceased to exist.9 the Lease (“Panama Treaty”), Treaty Canal agreement with im- to violate terms of an authorized construction of the Panama Ca- legally free party does not render a punity Maj. op. nal. at 1296-97. An examination only It means ignore agreement. Treaty actually Panama of the Canal spared the party is breach case, majority’s however. weakens the improper consequences of its practical Attorney Opinion ex- General’s celebrity If tenant breaches his acts. that, in the of the executive plained view by pets, unauthorized keeping lease branch: nothing that she can do the landlord feels it, thereby does not be- about the tenant treaty Article 3 of the transfers to Indeed, the of the house. come the owner States, sovereignty not the United waived the landlord not even have term, rights, “all power but no-pet term of the right to enforce the authority” within the Zone that it Rather, tenant is in lease later. sovereign.... would have if it were attend- escapes breach of the lease but expressly The omission to use words ant consequences. passing sovereignty was dictated rea- Similarly, even if the United States has assume; public policy, sons of I but Lease, simply big enough is violated the treaty gives whatever the reason the has been strong enough that Cuba sovereignty, and instead of substance legal its entitlements. unable to enforce containing a declaration transfer- mere power does not erase This difference in ring sovereignty, descends to the obligations under the the United States’ particulars rights, power, “all the Lease, it mean that Guantanamo nor does authority” belong sovereignty, part is negatives any “sovereign such actually States. The Lease rights, power, authority” in the for- lease, one with a highly albeit a unusual sovereign. mer

very tenant. pushy (1907). Op. Att’y Article Gen. leases, most As is the case with Treaty, III of the Panama on which Canal enjoyment dur- quiet tenant has a relied, Attorney Opinion General’s ing term. The owner—even the lease entirety: reads its ownership “continues” though “ultimate” Republic grants of Panama gives up during the term of the lease— rights, power and United States all the property jurisdiction and control over the authority within the zone mentioned and agreed by with whatever limits are agreement II just what described Article of this parties to the lease. That apparently ad- at 1294 n. 19. 9. The Government of Cuba point. Maj. op. my on this heres to view auxiliary sovereignty” ance of the ultimate to of all Cuba. within the limits mentioned and de- distinction in the of the and waters This texts two lands the Article II which in said must scribed documents be deemed intentional possess and exer- States would United given and must effect. Panama be terri- the the cise it were Treaty passed sovereignty to the Canal of if which said lands and waters tory within States, while United the Guantanamo of to the entire exclusion the are located Lease did not. of Republic of Panama exercise comparison provisions A of the of the au- sovereign rights, power or any such respect to eminent two documents with thority. domain, likewise, differing underscores the a Ship for the of Convention Construction sovereignty. of In treatment the Guanta- Atlan- Canal Connect Waters Lease, gives the namo Cuba United States Oceans, 18, 1903, Pacific Nov. U.S.-

tic and domain; is, this power of eminent Ill, Panama, (emphasis art. 33 Stat. an option buy. is a lease with Guanta- added). Lease, namo art. III. If the United States Panama of Article III of the The text sovereign, provision this would be of Treaty provisions differs from the Canal because, definition, redundant sover- Lease. The Guantanamo the Guantanamo power exercise the of eminent eign could says that States is Lease never the United domain. “rights, power and granted “all” of the An Panama examination Canal “if enjoy that it it were authority” would In Pana- Treaty illustrates this truism. contrary, To the the Guan- sovereign.” Treaty, gave ma Canal Panama the United concept mentions the of sov- tanamo Lease domain, power States a similar of eminent Cuba, not in ereignty in connection with buy, only an option or a lease with connection with United States. given that were to the respect to areas that “the provides Lease Guantanamo sovereign territory— United States its recognizes the continuance the cities and harbors of Panama Co- sovereignty Republic ultimate lon, II Treaty, Panama Canal arts. the above described areas of Cuba over areas as to which Panama VII. Lease, art. water.” Guantanamo land and un- sovereignty, such a clause was ceded added). There is no similar (emphasis Ill necessary power of eminent because Treaty. recognition the Panama Canal sovereignty. an attribute of domain is Treaty and the The Panama Canal But, in Lease and both Guantanamo many Lease share similari- Guantanamo in areas as to Treaty, Panama Canal ties, But the majority points as the out. (respectively) Panama re- Cuba and the United only question here is whether buy had to sovereignty option tained and the granted sovereignty, was States granted specifically as a contractual dramatically texts of the documents differ term. Treaty point. The Panama Canal power “all and authori- granted rights, Powers Separation States, ty” “sovereign” of a to the United mention. point additional bears One sovereignty express with no reservation posi- branch -has taken The executive Panama. The Lease is has no claim tion that “the United States just opposite; grants over the leased areas” sovereignty jurisdiс- “complete States the “exercise” George Appellees Brief for Guantanamo. desig- tion and control over and within” al., at 17. filed area, continu- Bush et June reserving nated while “the W. 363, 381, 2288, Rather, Bay Base is 120 S.Ct. 147 L.Ed.2d 352 Naval “Guantanamo (2000). sovereign territory of inconsistency within the It has created an in located Id. Republic of Cuba.” foreign policy, our nation’s with one (which primary responsibility has branch recently Supreme Court has re The field) declaring in this us that the Constitution allocates minded Guantanamo, sovereign States is not over foreign power relations to the federal (which political- and a second is not branch recognition in of the “concern for executive accountable) ly declaring that it is. The country’s dealings in with uniformity this that flow from such a situa- complications Am. v. foreign nations.” Ins. Ass’n Gar — -, amendi, -, they tion are obvious now as were to the 123 S.Ct. (2003) (inter 2374, 2386, framers, 156 L.Ed.2d 376 who chose to avoid them “ omitted). ‘Although quotation nal marks granting to the President the lead authori- power of the President’s to act the source ty foreign in affairs. enjoy foreign any in affairs does not textu circumstance, Perhaps some federal detail, gloss on the “execu al the historical obliged in court would be the execution tive Power” vested Article II of the declare, its constitutional duties to over the recognized has the Presi Constitution branch, objections of the executive responsibility “vast share of for the dent’s over some terri- United States ’” foreign conduct of our relations.” Id. However, tory. in view of the constitu- Youngstown (quoting Sheet & Tube Co. powers, tional allocation of and the need 610-11, Sawyer, 343 U.S. 72 S.Ct. speak for the United States to with one (1952) (Frankfurter, J., 96 L.Ed. 1153 con nations, dealing foreign voice in feder- also, City curring); e.g., see First Nat’l lightly. ques- al courts should tread The Cuba, Bank v. Banco Nacional de 406 U.S. tion whether the United States has sover- 92 S.Ct. 32 L.Ed.2d 466 eignty undeniably over Guantanamo is (1972) (explaining that the President has so, being particu- close. That the issue is ... in foreign policy”); “the lead role Chi. larly sensitive and the declarations Lines, & S. Air Inc. v. Waterman S.S. policy regarding foreign executive branch 103, 109, Corp., 338 U.S. carry significant weight. should The ma- (1948) (noting the L.Ed. 568 President’s jority’s failure to credit the executive organ foreign role the “Nation’s af position sovereignty branch’s

fairs”). an Guantanamo is unwise and unwarranted majority today declares that judicial authority extension of an arеna sovereignty over territo- belonging primarily to the executive state, objections ry foreign of a over the branch. Indeed, par- the executive branch. both to the Lease and its asso- ties 4. Defeml ciated treaties' —Cuba and the United noted, Supreme As Court has re- branch)— (through States the executive cently in a granted certiorari consolidated part of maintain that Guantanamo is Cuba. provides with an appeal Nevertheless, majority announces opportunity to consider the about the United States has annexed Guantana- majority disagree. which the and I doing, majority “compro- mo. so granting orders certiorari were limited very capacity of the President mise[s] the question: “Whether United States speak for the Nation with one voice courts lack to consider chal- dealing governments.” Crosby with other Council, lenges legality of the detention of Foreign v. Nat’l Trade law, Change any in con- outcome. if captured abroad there foreign nationals be, hostilities and incarcerated nection with Supreme will must come from the Base, I Bay Cuba.” the Guantanamo Naval that, Failing remedy, if Court. wait to hear the believe that we should be, Congress there will must come from question, answer to that Supreme Court’s branch. the executive express views that we here because the Accordingly, regrettably, I dissent. as soon as the Su- will become obsolete renders its decision. preme Court are that Mr. Gherebi raises

The issues troubling. existing

significant and Under however, I precedent, do

Supreme Court jurisdiction

not believe that we have good arguments There are

reach them.10 (and will) made in undoubtedly

that can proposition that federal support of the Johnny RILEY, Jr., Lee Petitioner- to hear ha- power courts should have the Appellant, prisoners held officers petitions beas whatever government, of the United States prisoners’ nationality and whatever PAYNE, Respondent-Appellee. Alice If the imprisonment. their situs of Su- No. 03-35054. persuaded by argu- those preme Court Johnson, modify or overrule I ments to Appeals, United States Court of reaching look forward to the merits Ninth Circuit. Supreme But until case. Argued and Submitted Oct. 2003. majority say that the or I speaks, nothing is, any legal can have effect. Our decision Filed Dec. sense, advisory. I therefore practical in a should defer submission believe

until the Court decides Rasul Supreme

and Al Odah.

5. Conclusion federal grave

It is of concern when

courts, traditionally guardians of our liberties, away turn

Constitution and our have vio-

claims officials I rights.

lated an individual’s am reluc-

tant, court, as was the district to hold

the court lacked over Mr. petition corpus, for habeas

Gherebi’s

my view should not be mistaken for ap- either of Mr. Gherebi’s detention or

proval precedent prevents us from

scrutinizing equally it. But I am reluctant ‍​​‌​​​‌‌‌‌​‌​​‌​​‌‌​​‌‌​​‌​‌​​​‌​‌​​​​‌​​‌​‌​​‌‌‍treaties, leases, Supreme distort

Court cases to reach a more desirable reason, would not reach the issue of venue. For the same I

Case Details

Case Name: Falen Gherebi v. George Walker Bush Donald H. Rumsfeld

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 18, 2003

Citation: 352 F.3d 1278

Docket Number: 03-55785

Court Abbreviation: 9th Cir.