Penn State International Law Review Volume 23 Article 10 Number 1 Penn State International Law Review 9-1-2004 A Most Certain Tragedy, but Reason Enough to Side-Step the Constitution and Values of the United States David R. Chludzinski Follow this and additional works at: http://elibrary.law.psu.edu/psilr Recommended Citation Chludzinski, David R. (2004) "A Most Certain Tragedy, but Reason Enough to Side-Step the Constitution and Values of the United States," Penn State International Law Review: Vol. 23: No. 1, Article 10. Available at: http://elibrary.law.psu.edu/psilr/vol23/iss1/10 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. A Most Certain Tragedy, but Reason Enough to Side-Step the Constitution and Values of the United States? David R. Chludzinski* I. Introduction Twenty-five years ago, in the midst of a bloody Cold War that pitted communism against democracy, two East German citizens hijacked a Polish airliner at gunpoint and diverted it to the sector of West Berlin, then occupied and operated by the United States.' These East Germans were eventually captured by the U.S. and held as detainees in a military area also occupied and operated by the U.S. 2 Although these East Germans violated the law by hijacking an airliner at gunpoint,3 the United States Court for Berlin held, in United States v. Tiede,4 that the U.S. Constitution gave these detainees the right to speak with counsel and the right to a trial by jury.5 Twenty-five years after the court's decision in Tiede, foreign nationals once again hijacked an airline. But this time, instead of diverting the plane into a section of West Berlin, the hijackers diverted the plane into sections of The World Trade Center in New York City on September 11, 2001 (hereinafter "9/11"). Like the U.S. reaction to the East German hijacking in the late 1970's, the U.S. military again sought * J.D. Candidate, The Pennsylvania State University Dickinson School of Law, 2005; B.A., Political Science, Boston College, 2001. The author wishes to thank Prof. Stephanie Farrior for her thoughtful suggestions for this Comment. In addition, the author wishes to thank Peter Burchett and Carolyn Pugh for their assistance in editing this Comment. 1. See United States v. Tiede, Crim. Case No.78-001A, 86 F.R.D. 227 (U.S. Ct. for Berlin Mar. 14, 1979), reprinted in 19 I.L.M. 179, 188 (1980); HERBERT J. STERN, JUDGMENT IN BERLIN, 8 (Universe Books) (1984). Judge Stem gave his perspective on the background outcome of United States v. Tiede, in particular, his decision to afford United States constitutional rights to aliens of the United States. Id. 2. See STERN, supra note 1, at 27-28. 3. Id. at 18. 4. Tiede, 19 I.L.M. at 204. 5. Id. at 179. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 23:1 to prosecute those having political and social connections with the 9/11 hijacking by detaining suspects and placing them in a U.S. occupied and operated military base in Guantanamo Bay, Cuba. However, unlike the East German detainees, these new Guantanamo Bay detainees are being denied the right to counsel, trial by jury, and even the right to be heard in U.S. Federal Court. Without question, the 9/11 terrorist attacks created a sense of caution and fear in many people throughout the world.6 These tragic events made many Americans fear that, at any moment, terror from afar could strike at home; a fear unmatched since the Japanese attacked Pearl Harbor.7 But while both the government and citizens of the U.S. are trying to cope with the aftermath of 9/11, so too are many non-resident aliens, who fear being plucked from parts of the Middle East and elsewhere to be brought to the U.S. military base in Guantanamo Bay as suspects of terror. A majority of these aliens brought to Guantanamo Bay have not been charged with an offense, told why they are being held, or given the opportunity to speak with counsel, family, or friends. 9 In March of 2003, 6. Andrew Miga, Attack on America; Violent Attacks Unite Congress-Vow To Stand Behind Bush for Justice, BOSTON HERALD, Sept. 13, 2001, at 22, available at 2001 WL 3810955. Discussing how the terrorist attacks of September 11 initially united many American leaders against terrorists, especially politicians from both parties, who sought retribution for the actions of the "terrorists." Id. 7. Commentary: Of Being Muslim and Arab-American Singled Out; Easy Targets for RetaliationBecause of Their Appearances, CHI. TRIB., Sept. 17, 2001, at 17, available at 2001 WL 4115711. This article briefly describes the attacks of September 11, 2001, and makes a comparison to the Attacks on Pearl Harbor over fifty years ago. Id. The article further elaborates on the possible issue of resentment towards people of Arab decent following September 11, and the need to restrain from retaliating against Arab- Americans. Id. 8. John Mintz, Lawyer: Most Cuba Detainees Not Terrorists; Young Men Moved by Arabic TV, 'Religious Fervor' Into Trip To Afghanistan, He Says, WASH. POST, June 2, 2002, at A 1l, available at 2002 WL 21748744. One of the lawyers representing many of the detainees in Guantanamo Bay, Cuba says that "[m]ost detainees at the U.S. prison in Guantanamo Bay, Cuba, have no affiliation with Al Qaeda or the Taliban and are largely young Arab men who rushed to Afghanistan with visions of assisting the needy." Id. Another attorney who represents some of the detainees, Najeeb AI-Nauimi said, "Inflamed by televised images of deprivation, the men now detained left jobs and families to go to Afghanistan... [o]nce in Afghanistan, the great majority never touched a gun or got anywhere near Osama Bin Laden's training camps." Id. 9. Foreign Detainees Matter Too, WASH. POST, Aug. 16, 2002, at A24, available at 2002 WL 24828225. This article comments on the U.S. District Judge, Colleen Kollar- Kotelly's dismissal of a lawsuit by twelve detainees being held in Guantanamo Bay, Cuba. Id. The judge ruled that the United States Constitution does not apply to these detainees because they are non-citizens being held outside of the United States. Id. Therefore, the judge wrote that "no U.S. court has jurisdiction to consider the detainees' claims that they are being illegally held without charge and without access to counsel and to their families." Id. 2004] A MOST CERTAIN TRAGEDY the Circuit Court of Appeals for the District of Columbia permitted the United States' actions by holding that courts are not open to aliens who are being held in military custody outside of a United States' territory.10 In essence, the court determined that the protections of the U.S. Constitution do not apply to these people, who are being held by the United States military in an area occupied and operated by the United States. " In November of 2003, the U.S. Supreme Court granted certiorari in Al Odah v. United States'2 to determine whether United States federal courts have jurisdiction to hear challenges to the open-ended detentions of foreign nationals detained in Guantanamo Bay.' 3 If the Supreme Court decides that the detainees can be heard in a federal court, the case 14 will be remanded to the district court and decided on its merits. However, the Supreme Court has deferred addressing the issue of whether these detentions are unconstitutional.15 Although Guantanamo Bay detainees will not know whether they can challenge their detentions until the Supreme Court decides Al Odah v. United States, they may seek comfort in a recent decision by the Court of Appeals for the Ninth Circuit. The Ninth Circuit held that the U.S. cannot indefinitely detain captured foreigners in Guantanamo Bay without allowing them to challenge their detentions in U.S. federal 10. Al Odah v. United States, 321 F.3d 1134, 1145 (D.C. Cir. 2003)petitionfor cert. filed, 72 USLW 3171 (Sept. 02, 2003) (NO. 03-334). This case involves twelve Kuwaiti nationals who were allegedly providing humanitarian aid in Pakistan and Afghanistan when they were seized by local bounty hunters, turned over to United States' forces, and transferred to Guantanamo Bay, Cuba. Id. at 1136. None of the attorneys for the plaintiffs in this case has had the opportunity to speak with their clients. Id. 11. Steve Vogel, Afghan Prisoners Going to Gray Area; Military Unsure What Follows Transfer To U.S. Base in Cuba, WASH. POST, Jan. 9, 2002, at Al, available at 2002 WL 2519780. This article briefly describes how Guantanamo Bay, Cuba became controlled and occupied by the United States. Id. After the Spanish-American War, "Cuba gave control of the base to the United States.. [t]he base was later leased in perpetuity to the United States, an agreement that can only be revoked if both countries agree. Id. 12. Linda Greenhouse, Justices To Hear Detainees; Top Court Takes Guantanamo Prisoners' Case, INT'L. HERALD TRIB., Nov. 12, 2003, at 1, available at 2003 WL 64831785. This article states that the Supreme Court will resolve whether or not federal courts can hear this case, but will not yet determine whether the detentions are constitutional. Id. 13. Charles Lane, Justices To Rule on Detainees' Rights; Court Access for 660 PrisonersAt Issue, WASH.