Background

  • The Tipton Three was a collective name given to three British citizens from Tipton, England who were being held in Guantanamo Bay after being captured in Afghanistan.
  • The Tipton Three, captured in Afghanistan in 2001, in relation to the 9/11 attacks in September of 2001. They were then transferred to United States Army custody and taken to Guantánamo Bay, where they were held as enemy combatants without trial.
  • The law concerning Habeas Corpus of foreign nationals in the U.S. and how it has previously existed.
    • Habeas Corpus: Is a order to the court that requests an inmate to be brought before the court to determine whether that person is imprisoned lawfully, and whether or not they should be released from custody.
    • The law concerning Habeas Corpus of foreign nationals in the US has a precedent case, Johnson v Eisentrager (1950). This case set out that nonresident enemy aliens do not have the legal right to petition U.S. courts for writs of habeas corpus.
  • The law concerning enemy combatants in the U.S. and in regards to Geneva convention.
    • The Geneva Convention is treaty law, which sets out the treatment of prisoners of war (POWs), and soldiers incapable of fight. The U.S. is a party to this treaty
    • Enemy Combatants: Are people who come with the intent of waging war by destruction of life or property. Enemy combatants are generally deemed not to be entitled to the status of a prisoner of war, but are subject to trial and punishment by military tribunals
    • The term enemy combatant exists as unlawful combatants under the Geneva Convention. Unlawful combatants do not qualify as POWs but qualify for some protection under the Geneva Convention. However, under the Bush administration enemy combatants are not protected under the Geneva Convention.
  • Enforcement and punishment for countries in violation of the Geneva Convention.
    • The Geneva Convention is to be enforced by the United Nations Security Council (UNSC). The UNSC rarely uses its authority in administrating the Geneva Convention, typically issues are resolved between involved parties through regional treaties or national law, but if not the convention may go unenforced.
    • Other times some countries act as protecting powers between two countries in conflict, they are responsible for implementing these conventions and overseeing treatment of POWs.
    • Nations who are parties to this treaty are responsible for bringing those who have violated the convention to trial. The only times people have been placed on trial for violation of the treaty were those responsible for the Rwandan and Yugoslavian genocides.

Key Legal Issues

  • Did the United States have jurisdiction to hear habeas corpus petitions filed by or on behalf of the Tipton Three who have been captured abroad and are being held in Guantánamo Bay?
    • Six weeks after the 9/11 attacks, Bush passed the USA Patriot Act, this restricted right of habeas corpus to residents of the US. In turn it allowed terrorist suspect to be held without legal counsel or trial and avoid protection of habeas corpus.
    • While the U.S. maintains complete jurisdiction over Guantánamo Bay they recognize that Cuba retains ultimate sovereignty, therefore writs of habeas corpus were not granted to aliens outside of U.S. sovereign territory.
    • This grey area is what set the basis for Rasul v Bush.
  • Were the U.S. held responsible for the treatment of the Tipton Three?
    • With being one of, if not the most powerful country in the world it is difficult for other countries to hold the United States accountable for violations of international law.
    • The Tipton Three did initiate a civil trial against Donald Rumsfeld the Secretary of Defence for authorizing interrogation tactics that violated international and U.S. law.
    • Rasul v Rumsfeld, concluded in 2009 when the D.C. Court of Appeal dismissed the case based on “limited immunity,” and that at the time it was not clearly established that actions carried out against detainees were not clearly prohibited at the time.

Case

  • Rasul v Bush was one of two cases filed in 2002, by the Center for Constitutional Rights (CCR). The other case being Habib v Bush concerned another detainee, a dual citizen of Egypt and Australia, being held under the same premise but was not part of the Tipton Three. Both cases were filed in challenge of the U.S. government’s practice of holding foreign nationals, and were heard in U.S. district courts.
  • Initially the Rasul v Bush case was dismissed on the grounds of a precedent, Johnson v Eisentrager (1950).
  • In 2004 the Supreme Court granted a writ of certiorari. (sersh-oh-rare-ee)
    • Writ of certiorari:  An order by a higher court to send all the documents of a case to the higher court to review the lower courts decision.
  • While the case was pending the petitioners Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed were released to the UK and set free upon arrival.
  • In a 6-3 ruling issued June 28; the Supreme Court overturned the lower courts decision and stated that the jurisdiction exercised by the United States over Guantánamo Bay is sufficient to guarantee habeas corpus rights to foreign nationals held there.
  • The Tipton Three were successful in overturning the past precedent of Johnson v Eisentrager, but were unsuccessful in bringing an end to indefinite detention without charge or trial, closure of Guantánamo, and holding the U.S. accountable for their torture methods.