Legal Case Summary

I'm so much my heart should great for your shader. My name is Stephen Yagman. I represent the plaintiff in this case By my count. It's been five hundred and seventy seven days

. He speak up a little I'm sorry. I know In my count, it's been five hundred seventy seven days since the confinement if one can call it that a guantanamo baby can on January 10th, 2002 This is a terrible time for the United States of America first because it's very dangerous for those of us who live here in an unpredictable way But in a second way that is as important. It's a terrible time for the United States of America because We are in a situation in which we can and I think now our treating people in a way that makes us Other than whom we are or whom we say we wish to be So I have a very very very preliminary question about jurisdiction in this case Your petitional legislators or your client's petitional legislators that his brother has been detained It seems to do so on information and belief and one of the requested remedies is to let him know whether his brother is in fact detained And in the supplemental brief the government now says they don't have any idea whether he's being detained or not Where is the body that allows the court to exercise habeas jurisdiction if We don't know whether he's Actually being detained as distinct from dead or in hiding or somewhere else But two answers to that one is in the incidence of the government who has failed to and is to obey and who has disobeyed the order of this court This court issued an order about three weeks ago I'll take that up with them when it's their turn But assume assume for the moment that we don't actually know whether or not this person is being held How can we possibly exercise habeas jurisdiction? It's been alleged and I think that this court is required to take the facts of the petition as they've been pled as true It's also been conceded by the government more than that

. I don't know how to answer that Question Reconceited when they say they don't know Well, they say the for the purposes of this court having issued that order that they conceded that the court That's because they want to ruling on the merits everybody seems to want to ruling on the merits You know these are difficult times when the United States government can do what they're doing here and take someone As we've alleged and hold that person and then when the court when a federal court says to the government Tell us if you have or not and they duck the question with an insolent answer Well, yeah, you can assume that I think the court has a duty to do something about that Let me get take some hide them and say let's see Agno your position from February 24th 2003 says He continues to be held against his will illegally That's what's before us What is it that As change is it that you have no information as to whether they have released them or But you did a lead because I understand them Yes, I did and what I said in the supplemental brief of page three in response to your questions your trial art is petition is counsel has no information Estegrates present to stoking Okay, but you did a lead you did a lead not on information I believe you just a lead that he was held as As a certain point he picked up hell and then you don't know what they've done to him since is that right that is correct Your honor, okay Well, I don't know how you're supposed to know what Happens to people who are and picked up and detained and how you supposed to know what happens to them afterwards Here there's a assume that only the government could tell you that You know reminds me of a 1937 book by Andre Malrow called days he's only got 20 minutes So and I won't use all of them There is a 1937 book by Andre Malrow called days of wrath in which a fellow named Crassner Who's a communist is picked up by the Nazis and he's held in communicado What all he does is he keeps banging on the wall of his cell? Not knowing what to do, but nobody knows he's being held This is cough gas. This is like something out of the castle or the trial It also reminds me and I hadn't prepared this of a an essay by cough called the Gates of the Law The moral of which at the end of the parable is that this this gate is only there for you for fellow who sits there for eternity Trying to get in and seeing everybody else get in. This is the reverse of the gates of the law They won't let them out and they won't tell you if he's there

. This is crazy. This is just nuts And I know that is close we away Next is soon for the moment that That we'll have to deal with the grave is preliminary question of whether We know enough to know that he's there to act assuming we get over that question And the grave was more to ask the government Let's get to the Question of our authority or the federal court's authority in general That starts out in 1803 with Marbury versus Madison from which I'll quote if he has a right and that right has been violated Do the laws of his country afford him a remedy? The question is his is this his country? Can the laws operate with respect to his situation if this court? Adopts the scam that is being perpetrated by the United States if he were held in Pakistan or Afghanistan or in Saudi Arabia or Iraq that we would have no jurisdiction Makes it a much more difficult question, but he's not held in any of those places He's held in a place where only the United States exercises jurisdiction Notwithstanding that bogus treaty for fueling for a coal fueling station that was forced down the throat of Cuba after the Spanish American War in 1903 Cuba doesn't have sovereignty That Guantanamo Bay that's that's ridiculous. It's just absolutely ridiculous Is this court the question is will this court deal with reality or will it base an issue was important on this On illegal fiction That treaty is illegal fiction as I indicated now it's a treaty

. It's It uses the word alderman sovereignty when it refers to what Cuba retains I think the Ralph O'Kase for this cited in the Rassul case Supports our position the analogy fits the United Nation had sovereignty over Micronesia And yet American law was applied there the situation is exactly the same here The school for the district court opinion made a mistake and did understand the Ralph O'Kase because it was trying to twist things to reach a preordained Result well, I don't know Affair description of the district court. It seemed to me District court was not trying to avoid reaching your result any Almost asked as to see if we could reach your result. No, I mean the district court I mean the court in the Ralph O'Kase in the Rassul case no no judge mats Finally came around after the passage of time and an opine that he hoped that there was some principled Way in which this court Could reach a result that would undo or mitigate or Miliorate the awful situation it was going on judge Maths wasn't as happy to do that a year ago when the people Decide what is it that you would like the court to do I to What what kinds of things would you ask the court to do in habeas Everything except and I'll numerate those things in second, but it's easier to do it by exclusion first Everything except Ordering that the person be released because there isn't any basis now without any information to ask for his release I would if I could but I think principal prevents me from doing that that he be Identified as being there that he be given access to counsel and that he be given access to the courts of the United States of America So that he can pursue a habeas corpus proceeding to challenge the legality the constitutionality of his detention And I thought you were also asking what the basis for them to identify the basis of his Detention that I had thought that would be subsumed in giving him an ability to see habeas corpus But yes, of course one of the things that we asked for was the basis for his detention And I think he has a right to that because the United States has him they have sold an exclusive jurisdiction over him and Putting him in Guantana will be thought to be brilliant by some people in the Justice Department But it's a scam

. It's the kind of scam that the Justice Department would prosecute if somebody pulled those kinds of shenanigans with them. It's just outrageous I Want to continue just to read one more sentence from Marbury versus Madison The very essence of civil liberty certainly consists of the right of every individual To claim the protection of the laws whenever he receives an injury One of the first duties of government and I think it is the first duty of government is to afford that protection That's the protection that is asked for here Continuing with the last sentence from this and I see I have plenty of time so I can read this The government of the United States has been in fatically termed a government of laws and not of men It will certainly cease to deserve this high Appalachian if the laws furnish no remedy for the violation of a vested legal right Does this person have a vested legal right? He's got a legal right because he's a human being because our government is holding him We know there is a Supreme Court case it says that in similar circumstances if the person has not been As and not had any connection with the United States That all of those wonderful phrases you read that is supposed to Determine how this country functions that they're not applicable to somebody who has not been In the United States for one of our territories or positions where all the activities and just confinement have occurred Outside extra territorially Johnson versus I should trigger is Distinguishable from this case as the court isn't the question not whether we should apply all these wonderful principles but whether They apply to Guantanamo Yes, they do because Johnson versus I should trigger is not controlling in the unique circumstances of this case and especially When as here our government Has set up this situation to try to put it within The umbrella of Johnson versus I should trigger the people in that case Were given access to legal process they had a trial which I believe was in Shanghai and China if I'm not mistaken They were given legal process they were then transported to Germany and held in detention by Americans the people in Guantanamo Bay Haven't had access to anything I just don't see how that case Applies and I don't see how it applies in light of the status of Guantanamo into the 1903 fueling treat Well, there's two different questions one question and I think probably the more significant question is What the status of Guantanamo is for the application of habeas? It's the same I believe or sufficiently similar to come within the ambit Of what the status of micro-nesia was in the Ralph O'Case It is a place being administered by the United States with respect to which another entity In the Ralph O'Case the United Nations had sovereignty if our laws and our country said the United Nations is not itself a sovereign nation Cuba is a sovereign nation I think that's the only way to take it And it maintains under the treaty and under the least ownership and sovereignty over the territory that it has leased to us Why isn't that And now it is to what occurred in Johnson Because I think that sovereignty in that sense is non-existent. It's like a unicorn It's sovereignty that will only ever go back to Cuba if the United States in its exclusive discretion says Okay, we're gonna we're gonna leave here now

. Maybe that'll happen after cash relieves who knows But Cuba doesn't really have sovereignty. I don't think sovereignty is necessarily Something that's there because it's written on a piece of paper I think one has to look at the facts in the real world can one really say That guantanamo bay is under the sovereign jurisdiction of Cuba as I indicate in the brief a fidel Castro It said let them out of there everybody knows what would happen Uh, it would probably end up on the J Lennon show with everybody laughing about Cuba That's kind of true of every lease if you have leased a house The owner can't come and then just tell you to have your guests who are otherwise behaving leave There are certain In addition of quiet enjoyment to to any lease so I don't understand how the United Nations is the equivalent of Cuba in your in your Discussion I don't say that the United Nations is the equivalent of Cuba what I say is that the the configuration is the same in that Putting aside who was sovereign in Micronesia The United States exercise complete control over Micronesia and therefore American law applied I call the United States exercise complete control over the prison in In Germany and Johnson against I can I'm sorry to hear the first word if you press they did not the United States have exclusive control over the prison where the people were held in Germany in Johnson against Izentracker Yes, it did How do we distinguish that then from At and a couple of times that leased although not exclusively in Johnson the court did use the term sovereign Yes contrasted with control So how do we distinguish our situation from that one First of all the prison was in a place Where there was a sovereign country as far as I understand the sovereign country and in getmo as they Used to call it and the autonomous bay and the people In the Izentracker case and Johnson case had had access To legal process they weren't being held in Communicado And I think that those facts that are present in this case that is The absence of access to counsel or to judicial review weren't present there and make it distinguishable on that Did they have access to the United States legal process in Johnson? No Well And are we somehow is it somehow a question of delegation is that the idea Uh, well, how is that distinction? I I can't answer that question. I'm just not smart enough to answer that question

. I apologize Um, that's a significant issue and I don't know what the resolution of it is I would like to reserve the three minutes and five seconds I Morning Your Honor is it may have pleased the court Paul Clement for appellee's respondents I'd like to start by answering judge graver's questions. I appreciate that because it strikes me as the Son of a thing that the government says after a year and then some That They have no idea whether this gentleman's brother is or is not being held at Guantanamo Bay Well with with your respect your honor. We certainly didn't mean to be heard as saying that we have no idea But there's there's a difficulty with respect

. You have an idea, but you're not telling us or do you not know whether he's there? No, the problem is um, there there would be two situations with respect to somebody at Guantanamo There would be when there's an allegation that the individual is down there There would be ruling out the possibility that he's there And then there would be the prospect of definitively ruling in that yes, that's an individual that we have Now with respect keep records. What's that? Don't you keep records? Oh, we do keep records and we are interested in nothing else more than The true identity of the individuals that are down in Guantanamo The difficulty is there's some subset of the individuals down there that haven't cooperated with the United States Haven't fully provided their their information as to their names or have provided multiple aliases And so if if I can just contrast this with the case involving let me just say that the information here is incredibly incomplete I'll just put it that way so it seems to me that a a a Complete answer to are the court's questions would have been Either there is where there is not a person by the name of Salim Garabie who is held at Guantanamo Bay and if the person And then you can go on to explain whether that's definitive because it's a common name like John Doe or because they're aliases or whatever but this Unable to determine sounds like you have no idea who's there Well, as I said we do know who's there at the time that we filed the supplemental brief We didn't have anybody's whose name was a very close match now we have gone back and we have looked and there now appears to be somebody The name is not identical But it bears it's a much longer name and it's spelled somewhat differently But it bears many many resemblance to it so the honest answer is right now We think we have him but we're not sure we're not we can't we can't confirm it a hundred percent and if I could say if I could contrast this With the situation that we faced in the DC litigation involving the individuals from Kuwait There we were given a petition that provided much more complete information And so in that circumstances we were able to definitively confirm I rule in the fact that we had those individuals down there now Tell us today that you're reasonably certain you actually do have this individual although when translated into English letters or whatever It doesn't look exactly the same That's exactly right your honor and again There's some information that one would might expect to have been in the petition here that's not there Such as the actual country of origin I mean the the petition for example alleges that this individual is from a foreign country But doesn't specify which one that's the kind of information that if we could get more specificity on that Excuse me might enable us to more definitively confirm it but and and this process is ongoing and we are as I say close And as soon as we can confirm it will will inform the court of that fourth with it just unfortunately The request put us in an awkward position because there are a few individuals down there who we simply cannot definitively identify and so under those circumstances it's a bit difficult for us to To say with with clarity We as I said certain very very difficult for us to rule out the possibility that the individuals there I think we are close as we were able to in the other cases to rule in the possibility that the individual is there With excuse me your honor with all respect I mean I wouldn't want the court to understand us as being anxious to get to the isentrager issue or to the The jurisdictional issue. I mean we would if this individual if we if there were a way to confirm that this individual wasn't down there We'd very much like to be able to do that and as an example for your honor in the coalition of clergy case before the night circuit It was at the government's suggestion that the panel ruled only on the standing issue and did not move on to the other issues And so I think it would be a mistake to say that the government is anyway anxious to get a decision on the isentrager decision It's just that on the state of the record certainly as it appeared at the time that the court asked the question to the government We couldn't rule out the possibility he was there And so we felt like we were in a position where those issues had to be reached Now a few weeks hence as I say I think we're very close to being able to confirm the individuals there We certainly suspect that and in any event are in no position because we now suspect that to deny the fundamental allegation that he's there So I'm sorry for that detour on that preliminary issue It's a very important issue and I'm sorry if in any respect the supplemental briefing was perceived as not being Responsive it just it was a very difficult question to respond to in large measure because there are some individuals down there Whose identity is not fully known and it in answer to the one of questions That is something that the government is obviously quite curious about and does try to very definitively try to identify the individual stand there Now if that's sufficiently responsive to the standing question, I guess I would go on to the issue of the isentrager decision And I think that In this case with respect to the territory known as Guantanamo There is no law other than United States law If somebody commits an offense in that territory and American a Cuban a Haitian This subject to United States law I think that's right

. It would they might be subject to military law They might be subject to civilian United States civilian law as to those statues that apply extra territoryly Well criminal offenses say Someone commits a murder in Guantanamo Someone a worker there. I get there's more than a military base I get or Or there are businesses there there houses there their houses there. They're no in that manner

. The murder is his wife People who work on the base Cubans or Haitians or whatever They're prosecuted under American law or discuba prosecute them I'm not 100% sure what would happen if a Cuban national Committed an offense on Guantanamo if an American Committed an offense on Guantanamo and was a criminal offense They could be prosecuted through military authority But they also could be prosecuted in the United States courts But it's very important that they would be prosecuted in the United States courts By virtue of specific provisions that make the United States criminal law apply extra territoryly To the United States military bases abroad And so that's true not just to Guantanamo but with respect to all of the United States military facilities abroad And there's obviously a critical distinction for purposes in this case and isentrager between extra territoryality and sovereign As I understand it for me and I think it was some of some of the facts in one of the cases where they talked about people who were not Americans Who were brought to Virginia and tried Minusin is there is no law in Guantanamo other than American law And I think that that certainly in the context you may be referring to the United States against lead case Which is a fourth-circuit case which was a criminal prosecution and if you look at that case It's very clear that the reason that the fourth circuit had jurisdiction there is because of a specific provision I think it's 18 USC maybe section 7-3 or 3-7 I may have a transpose that makes the United States criminal laws apply extra territoryly in on a military facility like Guantanamo And it's not it's your position. I gather that the United States could hold these people However many they have there take anyone that hold them indefinitely and or execute them or Hold them in conditions of confinement that were Violate all rules of international law and there would be no right that any of them would have to any access To anything Well, no, I don't think that's a position your honor are what right would they have if you were torturing them If you held them 20 years if you never did anything and you started executing them where would they go? Well, if we if the United States to take your hypothetical were to torture these individuals or execute them That would clearly violate international law and where would they go for the forum? The forum for that would be through political diplomatic and military channels and that's clearly what the Supreme Court invade or No, I mean what do they have any right people who are being tortured or executed? They have any rights at all The Supreme Court specifically addressed this in the Eisenthrager decision at footnote 14 And what they said is that the fact that the United States courts don't have jurisdiction Over aliens held abroad doesn't mean that those individuals have no rights It simply means that those rights are not Judicial enforceable in the United States courts and they're enforceable through political diplomatic channels And so you know these individuals are in contact with the international Maybe that they would have rights to foreign courts to those circumstances I'm not I'm not an expert on that particular issue. It may be but the point would be that there are other Here we know that there would be no judicial remedy for execution, torture Anything would be made to state status Again, I think that there would be no judicial form in the United States for those claims But those claims would be cognizable in international law through those channels and footnote 14 in Eisenthrager I just I point your honor's direct attention to the dissent in Eisenthrager because Justice Black had some of these same concerns that the individuals who were being held in military custody in Germany In the United States facility in lands for Germany would not have access to the German courts And so we don't know what they would have done in Eisenthrager had the situation been different these are people who had military trials there was a legitimacy to her We don't know what the decision would have been had the United States said we don't have to try anybody at all We don't have to do anything Well, though I do think the two fun I mean, I think Judge Coler could tell me in the Rasul case correctly identified that with respect to its jurisdictional holding The analysis of the Eisenthrager decision is effectively too dimensional It focused on the fact that they were aliens and on the fact that they were being held outside the United States sovereign territory And once those two conditions are satisfied then jurisdiction under habeas doesn't lie The court didn't focus and there's really nothing in that opinion that focuses on the degree of procedures that they had already been Availed of that it doesn't describe any great detail the nature of the proceedings in in in China or or or anything like that You're saying it's a difference but not a rationale of the court's opinion It may well be a difference. I mean you certainly I'm not you know these individuals have not yet been subjected to a military tribunal So in that sense, there are factual differences, but those factual differences are not married up with the court's reasoning in Eisenthrager Nor in subsequent cases interpreting Eisenthrager Can I ask you a kind of lawyer like question if I may be pardoned up You've talked about sovereignty The the least of Fontanimal Bay talks about Continuance of ultimate sovereignty. What does the word ultimate mean in that context? I think ultimate in that context means definitive or I mean I really could it not mean temporal I don't think so your honor and what I would point to is two things One I was noticed the contrast in the lease what it says is That while on the one hand the United States recognizes the continuance of ultimate sovereignty the Republic of Cuba over the above described areas of land and water On the other hand the Republic of Cuba consents during the period of occupation by the United States The United States shall exercise complete jurisdiction and control over those areas and so on Now doesn't that contrast suggest a temporal difference rather than the one that you've identified I don't think so your honor and I would point to two different things first of all just the very phrasing of recognizing the continuance of ultimate sovereigns I mean that is an ongoing permanent condition now if all they were talking about was sort of the Reconjury what is the content of Cuba's sovereignty over going to animal Bay what substantive content does it have now? Well let me answer the question this way by saying that the United States and the very fact that the United States Presence in Cuba is there by lease shows that the United States is not there enjoying the rights of the sovereign What's the term of the lease the term of the lease is is more or less until the United States pulls out but It's sovereign if it wants to has over an area which you to sovereign has the right to give that land to anybody else at once What other lease dear knowledge gives the unlimited time of the term of the lease to the lessee Your honor, I'm not you know, I haven't surveyed all the different leases. I know 99 year leases are quite common in This area 999 year leases I've drafted in the UK but the idea of Permanence, you know, there's a fiction of course that we indulge in that respect perhaps But this one has no time limit at all does it well? It does have but but again During the time limit there are significant restrictions on what the United States can do there The the parallel lease from July of 1903 limits the United States ability to to perform industrial operations on the island now If the United States enjoy true sovereignty over the area What do we do in the parallel lease? Well, what happened is there there are two this is this discussed um There there are two leases one from February 1903 one from July of 1903 then there's a tree of 1934 That expressly incorporates both those leases so both of those leases I think are relevant points for the courts attention and Article three of the July 1903 lease Specifically says that the United States can't operate industrial operations on the island now at the United States for sovereign there That restriction would have no place if the United States were sovereign there It could convey the Guantanamo base to any other country it wanted to now those are all things that the United States can't do And those demonstrate that even though Consurring to the lease the United States does exercise control He does not operate as a sovereign even during the tenure of the lease And if I could just make one point that I think is important is that the court doesn't write on a blank slate when it addresses The question of what is the status of least military bases abroad because the Supreme Court addressed that question in both The United States against spiel are and in Vermilia Brown against Connell and in those cases They specifically said that leasing of a military base abroad does not affect the transfer of sovereignty And specifically in the spiel are case which involved Newfoundland the court said that the lease there was the same that the lease And it was it all respects the same as the lease the court had considered the term before in Vermilia Brown And in Vermilia Brown which dealt with the base of Bermuda the court specifically said that that lease was an all material Respect similar to the to the lease for Guantanamo Bay So even with respected Guantanamo Bay itself this is not an issue the Supreme Court has not addressed did that one have for petrol term Well the Guantanamo base did at the time that the court referred to it on The one for Melia my understanding is I'm standing here your honor is that the Bernuda base had a 99 year term You know, I can try to check that for you

. I mean you certainly I'm not you know these individuals have not yet been subjected to a military tribunal So in that sense, there are factual differences, but those factual differences are not married up with the court's reasoning in Eisenthrager Nor in subsequent cases interpreting Eisenthrager Can I ask you a kind of lawyer like question if I may be pardoned up You've talked about sovereignty The the least of Fontanimal Bay talks about Continuance of ultimate sovereignty. What does the word ultimate mean in that context? I think ultimate in that context means definitive or I mean I really could it not mean temporal I don't think so your honor and what I would point to is two things One I was noticed the contrast in the lease what it says is That while on the one hand the United States recognizes the continuance of ultimate sovereignty the Republic of Cuba over the above described areas of land and water On the other hand the Republic of Cuba consents during the period of occupation by the United States The United States shall exercise complete jurisdiction and control over those areas and so on Now doesn't that contrast suggest a temporal difference rather than the one that you've identified I don't think so your honor and I would point to two different things first of all just the very phrasing of recognizing the continuance of ultimate sovereigns I mean that is an ongoing permanent condition now if all they were talking about was sort of the Reconjury what is the content of Cuba's sovereignty over going to animal Bay what substantive content does it have now? Well let me answer the question this way by saying that the United States and the very fact that the United States Presence in Cuba is there by lease shows that the United States is not there enjoying the rights of the sovereign What's the term of the lease the term of the lease is is more or less until the United States pulls out but It's sovereign if it wants to has over an area which you to sovereign has the right to give that land to anybody else at once What other lease dear knowledge gives the unlimited time of the term of the lease to the lessee Your honor, I'm not you know, I haven't surveyed all the different leases. I know 99 year leases are quite common in This area 999 year leases I've drafted in the UK but the idea of Permanence, you know, there's a fiction of course that we indulge in that respect perhaps But this one has no time limit at all does it well? It does have but but again During the time limit there are significant restrictions on what the United States can do there The the parallel lease from July of 1903 limits the United States ability to to perform industrial operations on the island now If the United States enjoy true sovereignty over the area What do we do in the parallel lease? Well, what happened is there there are two this is this discussed um There there are two leases one from February 1903 one from July of 1903 then there's a tree of 1934 That expressly incorporates both those leases so both of those leases I think are relevant points for the courts attention and Article three of the July 1903 lease Specifically says that the United States can't operate industrial operations on the island now at the United States for sovereign there That restriction would have no place if the United States were sovereign there It could convey the Guantanamo base to any other country it wanted to now those are all things that the United States can't do And those demonstrate that even though Consurring to the lease the United States does exercise control He does not operate as a sovereign even during the tenure of the lease And if I could just make one point that I think is important is that the court doesn't write on a blank slate when it addresses The question of what is the status of least military bases abroad because the Supreme Court addressed that question in both The United States against spiel are and in Vermilia Brown against Connell and in those cases They specifically said that leasing of a military base abroad does not affect the transfer of sovereignty And specifically in the spiel are case which involved Newfoundland the court said that the lease there was the same that the lease And it was it all respects the same as the lease the court had considered the term before in Vermilia Brown And in Vermilia Brown which dealt with the base of Bermuda the court specifically said that that lease was an all material Respect similar to the to the lease for Guantanamo Bay So even with respected Guantanamo Bay itself this is not an issue the Supreme Court has not addressed did that one have for petrol term Well the Guantanamo base did at the time that the court referred to it on The one for Melia my understanding is I'm standing here your honor is that the Bernuda base had a 99 year term You know, I can try to check that for you. I that's my understanding But again notwithstanding the difference in the term length the court in Vermilia Brown specifically referred to the leasing Guantanamo and said it was the same basic lease And in fact it Vermilia Brown's a five four decision both the majority in the dissent made the analogy to Guantanamo Bay And the needless to say every court that's looked at this case in a presidential opinion has reached the same conclusion The 11th Circuit has reached that conclusion the DC Circuit has reached that conclusion the district court Here's reached that conclusion in the district of Columbia The only authority that even suggests the contrary is a vacated opinion of this of the second circuit that was vacated by the Supreme Court of the United States So all the authorities point out for that reason No, not for that reason um, you know It was just vacated but it has no presidential way No, just for whatever the reason me might And I would see and I would suggest following Judge Randolph's opinion for the DC Circuit in the L.O.D

. I that's my understanding But again notwithstanding the difference in the term length the court in Vermilia Brown specifically referred to the leasing Guantanamo and said it was the same basic lease And in fact it Vermilia Brown's a five four decision both the majority in the dissent made the analogy to Guantanamo Bay And the needless to say every court that's looked at this case in a presidential opinion has reached the same conclusion The 11th Circuit has reached that conclusion the DC Circuit has reached that conclusion the district court Here's reached that conclusion in the district of Columbia The only authority that even suggests the contrary is a vacated opinion of this of the second circuit that was vacated by the Supreme Court of the United States So all the authorities point out for that reason No, not for that reason um, you know It was just vacated but it has no presidential way No, just for whatever the reason me might And I would see and I would suggest following Judge Randolph's opinion for the DC Circuit in the L.O.D. case that its reasoning isn't worth much because its reasoning is in fact inconsistent with Spiela and Vermilia Brown precisely the point that Judge Randolph made for a majority for a unanimous panel the DC Circuit in the L.O.D

. case that its reasoning isn't worth much because its reasoning is in fact inconsistent with Spiela and Vermilia Brown precisely the point that Judge Randolph made for a majority for a unanimous panel the DC Circuit in the L.O.D. case I assume that's a statement Was dictum in the Vermilia Brown If you choose it is an analogy it's like Guantanamo they said it's certainly it was dictum I think you're not really having to decide any issue Well I had that observation Well I think I before but I think the important thing is that in the Spiela decision which was a unanimous decision for purposes of identifying what what was a foreign country for purposes of the Federal towards claims act the court did specifically identify the status of least military basis abroad and said that they do not affect a transfer of sovereignty and that I would submit that is equally true of a least no matter what its terms that it does not affect a transfer of sovereignty And that is the important thing. I want to mention one other thing which is the other point that puts you in the direction of saying that Ultimate sovereignty means definitive sovereignty and not any kind of temporal concept is that that is also in the Spanish Translation of the treaty what the language suggests there its sovereignty definitive which Under any definition I think of that word is you know not subject to changes would be the translation of the Spanish definition of that of that term So I think and and and there's supreme court precedent for the notion that when there's a possibility to interpret a provisions Of a English version of a treaty and a Spanish version of treaty to coincide that that's the favorite translation or the favorite interpretation of the treaty There are other arguments that are raised to try to distinguish the Isentriger decision, but I think the important things is that those distinctions are not supported by the decision itself or by subsequent interpretations of that case by the by the United States Supreme Court and this court I mean for example It's been suggested that somehow it doesn't apply the Isentriger principles don't apply to aliens who are not somehow already designated to be enemy aliens But the supreme court for example in the Verduega or Qaeda's case has said that the the principles of Isentriger apply to aliens not to enemy aliens That case came up in the context of individual for Mexico who clearly wasn't an enemy alien This court in a number of cases has dealt with the entry fiction in the immigration context and has applied it to all aliens who aren't present in the United States Not just to enemy aliens. I see my time is about to expire

. case I assume that's a statement Was dictum in the Vermilia Brown If you choose it is an analogy it's like Guantanamo they said it's certainly it was dictum I think you're not really having to decide any issue Well I had that observation Well I think I before but I think the important thing is that in the Spiela decision which was a unanimous decision for purposes of identifying what what was a foreign country for purposes of the Federal towards claims act the court did specifically identify the status of least military basis abroad and said that they do not affect a transfer of sovereignty and that I would submit that is equally true of a least no matter what its terms that it does not affect a transfer of sovereignty And that is the important thing. I want to mention one other thing which is the other point that puts you in the direction of saying that Ultimate sovereignty means definitive sovereignty and not any kind of temporal concept is that that is also in the Spanish Translation of the treaty what the language suggests there its sovereignty definitive which Under any definition I think of that word is you know not subject to changes would be the translation of the Spanish definition of that of that term So I think and and and there's supreme court precedent for the notion that when there's a possibility to interpret a provisions Of a English version of a treaty and a Spanish version of treaty to coincide that that's the favorite translation or the favorite interpretation of the treaty There are other arguments that are raised to try to distinguish the Isentriger decision, but I think the important things is that those distinctions are not supported by the decision itself or by subsequent interpretations of that case by the by the United States Supreme Court and this court I mean for example It's been suggested that somehow it doesn't apply the Isentriger principles don't apply to aliens who are not somehow already designated to be enemy aliens But the supreme court for example in the Verduega or Qaeda's case has said that the the principles of Isentriger apply to aliens not to enemy aliens That case came up in the context of individual for Mexico who clearly wasn't an enemy alien This court in a number of cases has dealt with the entry fiction in the immigration context and has applied it to all aliens who aren't present in the United States Not just to enemy aliens. I see my time is about to expire. There are no other questions I think it's important, don't feel that it's going to be held in the exact limit Well, I think your honor. I think the important points are the ones that I've made in a sense this case Isentriger I think looms very large in this case and I don't think it is distinguishable for purposes of this case I would point out as we do in the brief that if this court were to disagree with the other courts that have looked at this question and found that there is jurisdiction in the United States court It would be far from obvious and we would suggest it would not be true that the proper court would be the central district of California and that the proper jurisdiction for such as you Sent Virginia this would be Yes, either the I think Eastern District of Virginia would be the most proper place for it I think there there is an argument and judge Mott's reach to conclusion that the district court for the district of Colombia is the right Is the right solution? I think if you look at the cases that sent cases to the DDC They're either from a time period where that's where actually the defense department was located or they just sort of did it without Sort of analyzing exactly why the DDC rather than the EDVA would be the right place I think the most thorough analysis of that point is in the D.C

. There are no other questions I think it's important, don't feel that it's going to be held in the exact limit Well, I think your honor. I think the important points are the ones that I've made in a sense this case Isentriger I think looms very large in this case and I don't think it is distinguishable for purposes of this case I would point out as we do in the brief that if this court were to disagree with the other courts that have looked at this question and found that there is jurisdiction in the United States court It would be far from obvious and we would suggest it would not be true that the proper court would be the central district of California and that the proper jurisdiction for such as you Sent Virginia this would be Yes, either the I think Eastern District of Virginia would be the most proper place for it I think there there is an argument and judge Mott's reach to conclusion that the district court for the district of Colombia is the right Is the right solution? I think if you look at the cases that sent cases to the DDC They're either from a time period where that's where actually the defense department was located or they just sort of did it without Sort of analyzing exactly why the DDC rather than the EDVA would be the right place I think the most thorough analysis of that point is in the D.C. circuits monk decision and that specifically finds that the EDVA is the proper place If there are no further questions rest in the case. Thank you, Your Honor. Thank you, Chair Anywhere but Virginia or the fourth circuit

. circuits monk decision and that specifically finds that the EDVA is the proper place If there are no further questions rest in the case. Thank you, Your Honor. Thank you, Chair Anywhere but Virginia or the fourth circuit. I don't think that issue is before this court I think the government engaged in some form shopping by sticking those other cases where they stuck them and by taking people into that circuit the only additional point I'd like to make is to take up judge shaders point about the temporality of the concept of ultimate and take that point to its logical conclusion Which is that it entails the notion which I think is a fact here that presently the United States of America in fact Has jurisdiction Over Guantanamo Bay such that American courts can exercise their jurisdiction there both in fact and in law Taking that point I have nothing else that I can add to this almost there are any questions What about counsel's point about the corresponding Spanish word And the fact that that sounds like definitive rather than temporal I don't know here's my guess I taught Spanish in high school in New York City in 1968 and 69 my Spanish no longer is what it was Then I would have to research that and look at the etymology of the word and I'll do that in submittal rule 28 J statement to this court Because I think the point needs to be addressed it wasn't addressed in the brief My guess is that with respect to American courts and interpretations of American treaties that we use the English And not the Spanish or the Korean or the Japanese But I may be wrong on that and I certainly when I get back to the disagree with the the the overall point that if there is ambiguity in the English but the companion Translation is unambiguous that we should look to the companion language I neither agree nor disagree because I haven't researched that I don't know the answer however I do not agree that there is any ambiguity whatsoever in The use of the phrase ultimate it has to mean something under the rules of statutory interpretation or construction As I understand them and I recently researched that in one of the recall cases that we're handling The words have to mean something. I think the word ultimate is unambiguous in English as we understand it It means Somewhere Later it's not a spatial term. It's certainly a temporal term

. I don't think that issue is before this court I think the government engaged in some form shopping by sticking those other cases where they stuck them and by taking people into that circuit the only additional point I'd like to make is to take up judge shaders point about the temporality of the concept of ultimate and take that point to its logical conclusion Which is that it entails the notion which I think is a fact here that presently the United States of America in fact Has jurisdiction Over Guantanamo Bay such that American courts can exercise their jurisdiction there both in fact and in law Taking that point I have nothing else that I can add to this almost there are any questions What about counsel's point about the corresponding Spanish word And the fact that that sounds like definitive rather than temporal I don't know here's my guess I taught Spanish in high school in New York City in 1968 and 69 my Spanish no longer is what it was Then I would have to research that and look at the etymology of the word and I'll do that in submittal rule 28 J statement to this court Because I think the point needs to be addressed it wasn't addressed in the brief My guess is that with respect to American courts and interpretations of American treaties that we use the English And not the Spanish or the Korean or the Japanese But I may be wrong on that and I certainly when I get back to the disagree with the the the overall point that if there is ambiguity in the English but the companion Translation is unambiguous that we should look to the companion language I neither agree nor disagree because I haven't researched that I don't know the answer however I do not agree that there is any ambiguity whatsoever in The use of the phrase ultimate it has to mean something under the rules of statutory interpretation or construction As I understand them and I recently researched that in one of the recall cases that we're handling The words have to mean something. I think the word ultimate is unambiguous in English as we understand it It means Somewhere Later it's not a spatial term. It's certainly a temporal term. So I don't agree with with the premise Um, but I don't know the answer to the question and I will when I get back to Los Angeles this evening Start to read English doesn't ultimate also mean just the biggest and the best we have the ultimate in spot treatments here It doesn't mean you can't come this week Well, it's been in that an ultimate sovereignty. We have the best sovereignty so that doesn't fit Well, it could it could mean that it is the the most Most important rather than future. I don't think it's Quantitative term

. So I don't agree with with the premise Um, but I don't know the answer to the question and I will when I get back to Los Angeles this evening Start to read English doesn't ultimate also mean just the biggest and the best we have the ultimate in spot treatments here It doesn't mean you can't come this week Well, it's been in that an ultimate sovereignty. We have the best sovereignty so that doesn't fit Well, it could it could mean that it is the the most Most important rather than future. I don't think it's Quantitative term. I'm trying to interpret it according to what I would understand ordinary language usage to be and it seems to me to be temporal I'm sure someone could if they chose to interpret it the way that you judge graver or interpreting it It just doesn't seem to me that in the context of a treaty That it's quantitative it seems to me is judge share pointed out that it's temporal. I asked a question of course But thanks for the suggestion that I pointed it out Thank you Thank you, council case just arguing will be submitted. Thank you both very much Okay

I'm so much my heart should great for your shader. My name is Stephen Yagman. I represent the plaintiff in this case By my count. It's been five hundred and seventy seven days. He speak up a little I'm sorry. I know In my count, it's been five hundred seventy seven days since the confinement if one can call it that a guantanamo baby can on January 10th, 2002 This is a terrible time for the United States of America first because it's very dangerous for those of us who live here in an unpredictable way But in a second way that is as important. It's a terrible time for the United States of America because We are in a situation in which we can and I think now our treating people in a way that makes us Other than whom we are or whom we say we wish to be So I have a very very very preliminary question about jurisdiction in this case Your petitional legislators or your client's petitional legislators that his brother has been detained It seems to do so on information and belief and one of the requested remedies is to let him know whether his brother is in fact detained And in the supplemental brief the government now says they don't have any idea whether he's being detained or not Where is the body that allows the court to exercise habeas jurisdiction if We don't know whether he's Actually being detained as distinct from dead or in hiding or somewhere else But two answers to that one is in the incidence of the government who has failed to and is to obey and who has disobeyed the order of this court This court issued an order about three weeks ago I'll take that up with them when it's their turn But assume assume for the moment that we don't actually know whether or not this person is being held How can we possibly exercise habeas jurisdiction? It's been alleged and I think that this court is required to take the facts of the petition as they've been pled as true It's also been conceded by the government more than that. I don't know how to answer that Question Reconceited when they say they don't know Well, they say the for the purposes of this court having issued that order that they conceded that the court That's because they want to ruling on the merits everybody seems to want to ruling on the merits You know these are difficult times when the United States government can do what they're doing here and take someone As we've alleged and hold that person and then when the court when a federal court says to the government Tell us if you have or not and they duck the question with an insolent answer Well, yeah, you can assume that I think the court has a duty to do something about that Let me get take some hide them and say let's see Agno your position from February 24th 2003 says He continues to be held against his will illegally That's what's before us What is it that As change is it that you have no information as to whether they have released them or But you did a lead because I understand them Yes, I did and what I said in the supplemental brief of page three in response to your questions your trial art is petition is counsel has no information Estegrates present to stoking Okay, but you did a lead you did a lead not on information I believe you just a lead that he was held as As a certain point he picked up hell and then you don't know what they've done to him since is that right that is correct Your honor, okay Well, I don't know how you're supposed to know what Happens to people who are and picked up and detained and how you supposed to know what happens to them afterwards Here there's a assume that only the government could tell you that You know reminds me of a 1937 book by Andre Malrow called days he's only got 20 minutes So and I won't use all of them There is a 1937 book by Andre Malrow called days of wrath in which a fellow named Crassner Who's a communist is picked up by the Nazis and he's held in communicado What all he does is he keeps banging on the wall of his cell? Not knowing what to do, but nobody knows he's being held This is cough gas. This is like something out of the castle or the trial It also reminds me and I hadn't prepared this of a an essay by cough called the Gates of the Law The moral of which at the end of the parable is that this this gate is only there for you for fellow who sits there for eternity Trying to get in and seeing everybody else get in. This is the reverse of the gates of the law They won't let them out and they won't tell you if he's there. This is crazy. This is just nuts And I know that is close we away Next is soon for the moment that That we'll have to deal with the grave is preliminary question of whether We know enough to know that he's there to act assuming we get over that question And the grave was more to ask the government Let's get to the Question of our authority or the federal court's authority in general That starts out in 1803 with Marbury versus Madison from which I'll quote if he has a right and that right has been violated Do the laws of his country afford him a remedy? The question is his is this his country? Can the laws operate with respect to his situation if this court? Adopts the scam that is being perpetrated by the United States if he were held in Pakistan or Afghanistan or in Saudi Arabia or Iraq that we would have no jurisdiction Makes it a much more difficult question, but he's not held in any of those places He's held in a place where only the United States exercises jurisdiction Notwithstanding that bogus treaty for fueling for a coal fueling station that was forced down the throat of Cuba after the Spanish American War in 1903 Cuba doesn't have sovereignty That Guantanamo Bay that's that's ridiculous. It's just absolutely ridiculous Is this court the question is will this court deal with reality or will it base an issue was important on this On illegal fiction That treaty is illegal fiction as I indicated now it's a treaty. It's It uses the word alderman sovereignty when it refers to what Cuba retains I think the Ralph O'Kase for this cited in the Rassul case Supports our position the analogy fits the United Nation had sovereignty over Micronesia And yet American law was applied there the situation is exactly the same here The school for the district court opinion made a mistake and did understand the Ralph O'Kase because it was trying to twist things to reach a preordained Result well, I don't know Affair description of the district court. It seemed to me District court was not trying to avoid reaching your result any Almost asked as to see if we could reach your result. No, I mean the district court I mean the court in the Ralph O'Kase in the Rassul case no no judge mats Finally came around after the passage of time and an opine that he hoped that there was some principled Way in which this court Could reach a result that would undo or mitigate or Miliorate the awful situation it was going on judge Maths wasn't as happy to do that a year ago when the people Decide what is it that you would like the court to do I to What what kinds of things would you ask the court to do in habeas Everything except and I'll numerate those things in second, but it's easier to do it by exclusion first Everything except Ordering that the person be released because there isn't any basis now without any information to ask for his release I would if I could but I think principal prevents me from doing that that he be Identified as being there that he be given access to counsel and that he be given access to the courts of the United States of America So that he can pursue a habeas corpus proceeding to challenge the legality the constitutionality of his detention And I thought you were also asking what the basis for them to identify the basis of his Detention that I had thought that would be subsumed in giving him an ability to see habeas corpus But yes, of course one of the things that we asked for was the basis for his detention And I think he has a right to that because the United States has him they have sold an exclusive jurisdiction over him and Putting him in Guantana will be thought to be brilliant by some people in the Justice Department But it's a scam. It's the kind of scam that the Justice Department would prosecute if somebody pulled those kinds of shenanigans with them. It's just outrageous I Want to continue just to read one more sentence from Marbury versus Madison The very essence of civil liberty certainly consists of the right of every individual To claim the protection of the laws whenever he receives an injury One of the first duties of government and I think it is the first duty of government is to afford that protection That's the protection that is asked for here Continuing with the last sentence from this and I see I have plenty of time so I can read this The government of the United States has been in fatically termed a government of laws and not of men It will certainly cease to deserve this high Appalachian if the laws furnish no remedy for the violation of a vested legal right Does this person have a vested legal right? He's got a legal right because he's a human being because our government is holding him We know there is a Supreme Court case it says that in similar circumstances if the person has not been As and not had any connection with the United States That all of those wonderful phrases you read that is supposed to Determine how this country functions that they're not applicable to somebody who has not been In the United States for one of our territories or positions where all the activities and just confinement have occurred Outside extra territorially Johnson versus I should trigger is Distinguishable from this case as the court isn't the question not whether we should apply all these wonderful principles but whether They apply to Guantanamo Yes, they do because Johnson versus I should trigger is not controlling in the unique circumstances of this case and especially When as here our government Has set up this situation to try to put it within The umbrella of Johnson versus I should trigger the people in that case Were given access to legal process they had a trial which I believe was in Shanghai and China if I'm not mistaken They were given legal process they were then transported to Germany and held in detention by Americans the people in Guantanamo Bay Haven't had access to anything I just don't see how that case Applies and I don't see how it applies in light of the status of Guantanamo into the 1903 fueling treat Well, there's two different questions one question and I think probably the more significant question is What the status of Guantanamo is for the application of habeas? It's the same I believe or sufficiently similar to come within the ambit Of what the status of micro-nesia was in the Ralph O'Case It is a place being administered by the United States with respect to which another entity In the Ralph O'Case the United Nations had sovereignty if our laws and our country said the United Nations is not itself a sovereign nation Cuba is a sovereign nation I think that's the only way to take it And it maintains under the treaty and under the least ownership and sovereignty over the territory that it has leased to us Why isn't that And now it is to what occurred in Johnson Because I think that sovereignty in that sense is non-existent. It's like a unicorn It's sovereignty that will only ever go back to Cuba if the United States in its exclusive discretion says Okay, we're gonna we're gonna leave here now. Maybe that'll happen after cash relieves who knows But Cuba doesn't really have sovereignty. I don't think sovereignty is necessarily Something that's there because it's written on a piece of paper I think one has to look at the facts in the real world can one really say That guantanamo bay is under the sovereign jurisdiction of Cuba as I indicate in the brief a fidel Castro It said let them out of there everybody knows what would happen Uh, it would probably end up on the J Lennon show with everybody laughing about Cuba That's kind of true of every lease if you have leased a house The owner can't come and then just tell you to have your guests who are otherwise behaving leave There are certain In addition of quiet enjoyment to to any lease so I don't understand how the United Nations is the equivalent of Cuba in your in your Discussion I don't say that the United Nations is the equivalent of Cuba what I say is that the the configuration is the same in that Putting aside who was sovereign in Micronesia The United States exercise complete control over Micronesia and therefore American law applied I call the United States exercise complete control over the prison in In Germany and Johnson against I can I'm sorry to hear the first word if you press they did not the United States have exclusive control over the prison where the people were held in Germany in Johnson against Izentracker Yes, it did How do we distinguish that then from At and a couple of times that leased although not exclusively in Johnson the court did use the term sovereign Yes contrasted with control So how do we distinguish our situation from that one First of all the prison was in a place Where there was a sovereign country as far as I understand the sovereign country and in getmo as they Used to call it and the autonomous bay and the people In the Izentracker case and Johnson case had had access To legal process they weren't being held in Communicado And I think that those facts that are present in this case that is The absence of access to counsel or to judicial review weren't present there and make it distinguishable on that Did they have access to the United States legal process in Johnson? No Well And are we somehow is it somehow a question of delegation is that the idea Uh, well, how is that distinction? I I can't answer that question. I'm just not smart enough to answer that question. I apologize Um, that's a significant issue and I don't know what the resolution of it is I would like to reserve the three minutes and five seconds I Morning Your Honor is it may have pleased the court Paul Clement for appellee's respondents I'd like to start by answering judge graver's questions. I appreciate that because it strikes me as the Son of a thing that the government says after a year and then some That They have no idea whether this gentleman's brother is or is not being held at Guantanamo Bay Well with with your respect your honor. We certainly didn't mean to be heard as saying that we have no idea But there's there's a difficulty with respect. You have an idea, but you're not telling us or do you not know whether he's there? No, the problem is um, there there would be two situations with respect to somebody at Guantanamo There would be when there's an allegation that the individual is down there There would be ruling out the possibility that he's there And then there would be the prospect of definitively ruling in that yes, that's an individual that we have Now with respect keep records. What's that? Don't you keep records? Oh, we do keep records and we are interested in nothing else more than The true identity of the individuals that are down in Guantanamo The difficulty is there's some subset of the individuals down there that haven't cooperated with the United States Haven't fully provided their their information as to their names or have provided multiple aliases And so if if I can just contrast this with the case involving let me just say that the information here is incredibly incomplete I'll just put it that way so it seems to me that a a a Complete answer to are the court's questions would have been Either there is where there is not a person by the name of Salim Garabie who is held at Guantanamo Bay and if the person And then you can go on to explain whether that's definitive because it's a common name like John Doe or because they're aliases or whatever but this Unable to determine sounds like you have no idea who's there Well, as I said we do know who's there at the time that we filed the supplemental brief We didn't have anybody's whose name was a very close match now we have gone back and we have looked and there now appears to be somebody The name is not identical But it bears it's a much longer name and it's spelled somewhat differently But it bears many many resemblance to it so the honest answer is right now We think we have him but we're not sure we're not we can't we can't confirm it a hundred percent and if I could say if I could contrast this With the situation that we faced in the DC litigation involving the individuals from Kuwait There we were given a petition that provided much more complete information And so in that circumstances we were able to definitively confirm I rule in the fact that we had those individuals down there now Tell us today that you're reasonably certain you actually do have this individual although when translated into English letters or whatever It doesn't look exactly the same That's exactly right your honor and again There's some information that one would might expect to have been in the petition here that's not there Such as the actual country of origin I mean the the petition for example alleges that this individual is from a foreign country But doesn't specify which one that's the kind of information that if we could get more specificity on that Excuse me might enable us to more definitively confirm it but and and this process is ongoing and we are as I say close And as soon as we can confirm it will will inform the court of that fourth with it just unfortunately The request put us in an awkward position because there are a few individuals down there who we simply cannot definitively identify and so under those circumstances it's a bit difficult for us to To say with with clarity We as I said certain very very difficult for us to rule out the possibility that the individuals there I think we are close as we were able to in the other cases to rule in the possibility that the individual is there With excuse me your honor with all respect I mean I wouldn't want the court to understand us as being anxious to get to the isentrager issue or to the The jurisdictional issue. I mean we would if this individual if we if there were a way to confirm that this individual wasn't down there We'd very much like to be able to do that and as an example for your honor in the coalition of clergy case before the night circuit It was at the government's suggestion that the panel ruled only on the standing issue and did not move on to the other issues And so I think it would be a mistake to say that the government is anyway anxious to get a decision on the isentrager decision It's just that on the state of the record certainly as it appeared at the time that the court asked the question to the government We couldn't rule out the possibility he was there And so we felt like we were in a position where those issues had to be reached Now a few weeks hence as I say I think we're very close to being able to confirm the individuals there We certainly suspect that and in any event are in no position because we now suspect that to deny the fundamental allegation that he's there So I'm sorry for that detour on that preliminary issue It's a very important issue and I'm sorry if in any respect the supplemental briefing was perceived as not being Responsive it just it was a very difficult question to respond to in large measure because there are some individuals down there Whose identity is not fully known and it in answer to the one of questions That is something that the government is obviously quite curious about and does try to very definitively try to identify the individual stand there Now if that's sufficiently responsive to the standing question, I guess I would go on to the issue of the isentrager decision And I think that In this case with respect to the territory known as Guantanamo There is no law other than United States law If somebody commits an offense in that territory and American a Cuban a Haitian This subject to United States law I think that's right. It would they might be subject to military law They might be subject to civilian United States civilian law as to those statues that apply extra territoryly Well criminal offenses say Someone commits a murder in Guantanamo Someone a worker there. I get there's more than a military base I get or Or there are businesses there there houses there their houses there. They're no in that manner. The murder is his wife People who work on the base Cubans or Haitians or whatever They're prosecuted under American law or discuba prosecute them I'm not 100% sure what would happen if a Cuban national Committed an offense on Guantanamo if an American Committed an offense on Guantanamo and was a criminal offense They could be prosecuted through military authority But they also could be prosecuted in the United States courts But it's very important that they would be prosecuted in the United States courts By virtue of specific provisions that make the United States criminal law apply extra territoryly To the United States military bases abroad And so that's true not just to Guantanamo but with respect to all of the United States military facilities abroad And there's obviously a critical distinction for purposes in this case and isentrager between extra territoryality and sovereign As I understand it for me and I think it was some of some of the facts in one of the cases where they talked about people who were not Americans Who were brought to Virginia and tried Minusin is there is no law in Guantanamo other than American law And I think that that certainly in the context you may be referring to the United States against lead case Which is a fourth-circuit case which was a criminal prosecution and if you look at that case It's very clear that the reason that the fourth circuit had jurisdiction there is because of a specific provision I think it's 18 USC maybe section 7-3 or 3-7 I may have a transpose that makes the United States criminal laws apply extra territoryly in on a military facility like Guantanamo And it's not it's your position. I gather that the United States could hold these people However many they have there take anyone that hold them indefinitely and or execute them or Hold them in conditions of confinement that were Violate all rules of international law and there would be no right that any of them would have to any access To anything Well, no, I don't think that's a position your honor are what right would they have if you were torturing them If you held them 20 years if you never did anything and you started executing them where would they go? Well, if we if the United States to take your hypothetical were to torture these individuals or execute them That would clearly violate international law and where would they go for the forum? The forum for that would be through political diplomatic and military channels and that's clearly what the Supreme Court invade or No, I mean what do they have any right people who are being tortured or executed? They have any rights at all The Supreme Court specifically addressed this in the Eisenthrager decision at footnote 14 And what they said is that the fact that the United States courts don't have jurisdiction Over aliens held abroad doesn't mean that those individuals have no rights It simply means that those rights are not Judicial enforceable in the United States courts and they're enforceable through political diplomatic channels And so you know these individuals are in contact with the international Maybe that they would have rights to foreign courts to those circumstances I'm not I'm not an expert on that particular issue. It may be but the point would be that there are other Here we know that there would be no judicial remedy for execution, torture Anything would be made to state status Again, I think that there would be no judicial form in the United States for those claims But those claims would be cognizable in international law through those channels and footnote 14 in Eisenthrager I just I point your honor's direct attention to the dissent in Eisenthrager because Justice Black had some of these same concerns that the individuals who were being held in military custody in Germany In the United States facility in lands for Germany would not have access to the German courts And so we don't know what they would have done in Eisenthrager had the situation been different these are people who had military trials there was a legitimacy to her We don't know what the decision would have been had the United States said we don't have to try anybody at all We don't have to do anything Well, though I do think the two fun I mean, I think Judge Coler could tell me in the Rasul case correctly identified that with respect to its jurisdictional holding The analysis of the Eisenthrager decision is effectively too dimensional It focused on the fact that they were aliens and on the fact that they were being held outside the United States sovereign territory And once those two conditions are satisfied then jurisdiction under habeas doesn't lie The court didn't focus and there's really nothing in that opinion that focuses on the degree of procedures that they had already been Availed of that it doesn't describe any great detail the nature of the proceedings in in in China or or or anything like that You're saying it's a difference but not a rationale of the court's opinion It may well be a difference. I mean you certainly I'm not you know these individuals have not yet been subjected to a military tribunal So in that sense, there are factual differences, but those factual differences are not married up with the court's reasoning in Eisenthrager Nor in subsequent cases interpreting Eisenthrager Can I ask you a kind of lawyer like question if I may be pardoned up You've talked about sovereignty The the least of Fontanimal Bay talks about Continuance of ultimate sovereignty. What does the word ultimate mean in that context? I think ultimate in that context means definitive or I mean I really could it not mean temporal I don't think so your honor and what I would point to is two things One I was noticed the contrast in the lease what it says is That while on the one hand the United States recognizes the continuance of ultimate sovereignty the Republic of Cuba over the above described areas of land and water On the other hand the Republic of Cuba consents during the period of occupation by the United States The United States shall exercise complete jurisdiction and control over those areas and so on Now doesn't that contrast suggest a temporal difference rather than the one that you've identified I don't think so your honor and I would point to two different things first of all just the very phrasing of recognizing the continuance of ultimate sovereigns I mean that is an ongoing permanent condition now if all they were talking about was sort of the Reconjury what is the content of Cuba's sovereignty over going to animal Bay what substantive content does it have now? Well let me answer the question this way by saying that the United States and the very fact that the United States Presence in Cuba is there by lease shows that the United States is not there enjoying the rights of the sovereign What's the term of the lease the term of the lease is is more or less until the United States pulls out but It's sovereign if it wants to has over an area which you to sovereign has the right to give that land to anybody else at once What other lease dear knowledge gives the unlimited time of the term of the lease to the lessee Your honor, I'm not you know, I haven't surveyed all the different leases. I know 99 year leases are quite common in This area 999 year leases I've drafted in the UK but the idea of Permanence, you know, there's a fiction of course that we indulge in that respect perhaps But this one has no time limit at all does it well? It does have but but again During the time limit there are significant restrictions on what the United States can do there The the parallel lease from July of 1903 limits the United States ability to to perform industrial operations on the island now If the United States enjoy true sovereignty over the area What do we do in the parallel lease? Well, what happened is there there are two this is this discussed um There there are two leases one from February 1903 one from July of 1903 then there's a tree of 1934 That expressly incorporates both those leases so both of those leases I think are relevant points for the courts attention and Article three of the July 1903 lease Specifically says that the United States can't operate industrial operations on the island now at the United States for sovereign there That restriction would have no place if the United States were sovereign there It could convey the Guantanamo base to any other country it wanted to now those are all things that the United States can't do And those demonstrate that even though Consurring to the lease the United States does exercise control He does not operate as a sovereign even during the tenure of the lease And if I could just make one point that I think is important is that the court doesn't write on a blank slate when it addresses The question of what is the status of least military bases abroad because the Supreme Court addressed that question in both The United States against spiel are and in Vermilia Brown against Connell and in those cases They specifically said that leasing of a military base abroad does not affect the transfer of sovereignty And specifically in the spiel are case which involved Newfoundland the court said that the lease there was the same that the lease And it was it all respects the same as the lease the court had considered the term before in Vermilia Brown And in Vermilia Brown which dealt with the base of Bermuda the court specifically said that that lease was an all material Respect similar to the to the lease for Guantanamo Bay So even with respected Guantanamo Bay itself this is not an issue the Supreme Court has not addressed did that one have for petrol term Well the Guantanamo base did at the time that the court referred to it on The one for Melia my understanding is I'm standing here your honor is that the Bernuda base had a 99 year term You know, I can try to check that for you. I that's my understanding But again notwithstanding the difference in the term length the court in Vermilia Brown specifically referred to the leasing Guantanamo and said it was the same basic lease And in fact it Vermilia Brown's a five four decision both the majority in the dissent made the analogy to Guantanamo Bay And the needless to say every court that's looked at this case in a presidential opinion has reached the same conclusion The 11th Circuit has reached that conclusion the DC Circuit has reached that conclusion the district court Here's reached that conclusion in the district of Columbia The only authority that even suggests the contrary is a vacated opinion of this of the second circuit that was vacated by the Supreme Court of the United States So all the authorities point out for that reason No, not for that reason um, you know It was just vacated but it has no presidential way No, just for whatever the reason me might And I would see and I would suggest following Judge Randolph's opinion for the DC Circuit in the L.O.D. case that its reasoning isn't worth much because its reasoning is in fact inconsistent with Spiela and Vermilia Brown precisely the point that Judge Randolph made for a majority for a unanimous panel the DC Circuit in the L.O.D. case I assume that's a statement Was dictum in the Vermilia Brown If you choose it is an analogy it's like Guantanamo they said it's certainly it was dictum I think you're not really having to decide any issue Well I had that observation Well I think I before but I think the important thing is that in the Spiela decision which was a unanimous decision for purposes of identifying what what was a foreign country for purposes of the Federal towards claims act the court did specifically identify the status of least military basis abroad and said that they do not affect a transfer of sovereignty and that I would submit that is equally true of a least no matter what its terms that it does not affect a transfer of sovereignty And that is the important thing. I want to mention one other thing which is the other point that puts you in the direction of saying that Ultimate sovereignty means definitive sovereignty and not any kind of temporal concept is that that is also in the Spanish Translation of the treaty what the language suggests there its sovereignty definitive which Under any definition I think of that word is you know not subject to changes would be the translation of the Spanish definition of that of that term So I think and and and there's supreme court precedent for the notion that when there's a possibility to interpret a provisions Of a English version of a treaty and a Spanish version of treaty to coincide that that's the favorite translation or the favorite interpretation of the treaty There are other arguments that are raised to try to distinguish the Isentriger decision, but I think the important things is that those distinctions are not supported by the decision itself or by subsequent interpretations of that case by the by the United States Supreme Court and this court I mean for example It's been suggested that somehow it doesn't apply the Isentriger principles don't apply to aliens who are not somehow already designated to be enemy aliens But the supreme court for example in the Verduega or Qaeda's case has said that the the principles of Isentriger apply to aliens not to enemy aliens That case came up in the context of individual for Mexico who clearly wasn't an enemy alien This court in a number of cases has dealt with the entry fiction in the immigration context and has applied it to all aliens who aren't present in the United States Not just to enemy aliens. I see my time is about to expire. There are no other questions I think it's important, don't feel that it's going to be held in the exact limit Well, I think your honor. I think the important points are the ones that I've made in a sense this case Isentriger I think looms very large in this case and I don't think it is distinguishable for purposes of this case I would point out as we do in the brief that if this court were to disagree with the other courts that have looked at this question and found that there is jurisdiction in the United States court It would be far from obvious and we would suggest it would not be true that the proper court would be the central district of California and that the proper jurisdiction for such as you Sent Virginia this would be Yes, either the I think Eastern District of Virginia would be the most proper place for it I think there there is an argument and judge Mott's reach to conclusion that the district court for the district of Colombia is the right Is the right solution? I think if you look at the cases that sent cases to the DDC They're either from a time period where that's where actually the defense department was located or they just sort of did it without Sort of analyzing exactly why the DDC rather than the EDVA would be the right place I think the most thorough analysis of that point is in the D.C. circuits monk decision and that specifically finds that the EDVA is the proper place If there are no further questions rest in the case. Thank you, Your Honor. Thank you, Chair Anywhere but Virginia or the fourth circuit. I don't think that issue is before this court I think the government engaged in some form shopping by sticking those other cases where they stuck them and by taking people into that circuit the only additional point I'd like to make is to take up judge shaders point about the temporality of the concept of ultimate and take that point to its logical conclusion Which is that it entails the notion which I think is a fact here that presently the United States of America in fact Has jurisdiction Over Guantanamo Bay such that American courts can exercise their jurisdiction there both in fact and in law Taking that point I have nothing else that I can add to this almost there are any questions What about counsel's point about the corresponding Spanish word And the fact that that sounds like definitive rather than temporal I don't know here's my guess I taught Spanish in high school in New York City in 1968 and 69 my Spanish no longer is what it was Then I would have to research that and look at the etymology of the word and I'll do that in submittal rule 28 J statement to this court Because I think the point needs to be addressed it wasn't addressed in the brief My guess is that with respect to American courts and interpretations of American treaties that we use the English And not the Spanish or the Korean or the Japanese But I may be wrong on that and I certainly when I get back to the disagree with the the the overall point that if there is ambiguity in the English but the companion Translation is unambiguous that we should look to the companion language I neither agree nor disagree because I haven't researched that I don't know the answer however I do not agree that there is any ambiguity whatsoever in The use of the phrase ultimate it has to mean something under the rules of statutory interpretation or construction As I understand them and I recently researched that in one of the recall cases that we're handling The words have to mean something. I think the word ultimate is unambiguous in English as we understand it It means Somewhere Later it's not a spatial term. It's certainly a temporal term. So I don't agree with with the premise Um, but I don't know the answer to the question and I will when I get back to Los Angeles this evening Start to read English doesn't ultimate also mean just the biggest and the best we have the ultimate in spot treatments here It doesn't mean you can't come this week Well, it's been in that an ultimate sovereignty. We have the best sovereignty so that doesn't fit Well, it could it could mean that it is the the most Most important rather than future. I don't think it's Quantitative term. I'm trying to interpret it according to what I would understand ordinary language usage to be and it seems to me to be temporal I'm sure someone could if they chose to interpret it the way that you judge graver or interpreting it It just doesn't seem to me that in the context of a treaty That it's quantitative it seems to me is judge share pointed out that it's temporal. I asked a question of course But thanks for the suggestion that I pointed it out Thank you Thank you, council case just arguing will be submitted. Thank you both very much Oka