PART E: Detention and Treatment of Foreign Nationals

Beyond the Patriot Act: Cases and Laws Outside of the Scope of the PATRIOT Act That Nonetheless Raise Civil Liberties Issues

The detention and treatment of foreign nationals have raised many issues regarding whether the United States is complying with domestic law, constitutional law and international law that are beyond the scope of this project, because these questions are for the most part being debated in Congress, the press and by the public, rather than in the courts of law.  Of the situations raising detention and treatment issues, the ones that have begun to engage the civil and military justice systems have arisen at Guantanamo Bay, Cuba.  Pursuant to a 1903 lease agreement, the United States has control over the area upon which its Guantanamo Bay Naval Base is located.  Although district courts in the cases of several detainees in Guantanamo Bay found that the United States did not have jurisdiction over the area and therefore detainees could not file habeas corpus claims, the Supreme Court overturned these decisions.  See Rasul v. Bush, 124 S. Ct. 2686 (2004) (finding that detainees at Guantanamo Bay are entitled to put forth their claims in the courts of the District of Columbia); see also In re Guantanamo Detainee Cases, 355 F.Supp. 2d 443 (D.D.C. 2005) (holding that those detained at Guantanamo Bay deserve the due process of the Fifth Amendment).  However, the courts have not yielded to the claims of detainees each time.  See Al-Anazi v. Bush, 2005 U.S. Dist. LEXIS 6803 (D.D.C. 2005) (refusing petitioners’ request for counsel notification prior to their transfer outside of the United States), Paracha v. Bush, 2005 U.S. Dist. LEXIS 11704 (D.D.C. 2005) (denying detainee’s request for injunction of his solitary confinement due to an alleged lack of evidence).

Some individuals and groups have tried to protect the civil liberties of those in confinement by petitioning on their behalf.  However, the courts will grant these petitions only with a proper showing of standing.  See Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002) (dismissing plaintiffs’ claims on behalf of Guanatanamo Bay detainees because plaintiffs failed to demonstrate a relationship and/or communication with detainees).

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Cases

• Abdah v. Bush, 2005 U.S. Dist. LEXIS 4942 (D.C. Cir. 2005)
• ACLU v. DOD, 351 F. Supp. 2d 265 (S.D.N.Y. 2005)
• Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.C. Cir. 2005)
• Al-Marri v. Bush, No. 04-2035, 2005 U.S. Dist. LEXIS 6259 (D.C. Cir. Apr. 4, 2005)
• Almurbati v. Bush, 366 F. Supp. 2d 72 (D.C. Cir. 2005)
• Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002)
• Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005)
• In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.C. Cir. 2005)
• Khalid v. Bush, 355 F.Supp. 2d 311 (D.C. Cir. 2005)
• O.K. v. Bush, 377 F.Supp. 2d 102 (D.C. Cir. 2005)
• Padilla v. Hanft, 389 F. Supp. 2d 678 (D.C. Cir. 2005)
• Paracha v. Bush, No. 04-2022, 2005 U.S. Dist. LEXIS 11704 (D.C. Cir. June 16, 2005)
• Rasul v. Bush, 542 U.S. 466 (2004) - CATEGORY 7
• United States v. Bin Laden, No. S7R 98 Cr. 1023, 2005 U.S. Dist. LEXIS 1669 (S.D.N.Y. Feb. 7, 2005)