1 On February 11, 2002, after the parties had filed their respective briefs on the threshold jurisdictional issues, petitioners filed a “First Amended” petition purporting to add a claim under what they refer to as the “cruel and unusual clause” of the Eighth Amendment. Counsel for petitioners had acknowledged at the hearing “I'm going to have to proceed on the petition as it is right now. And if a decision is reached to add an Eighth Amendment claim, then I'm going to have to ask for permission to do that.” He neither sought nor received permission. Moreover, the court instructed the parties that “if there is jurisdiction the petition could be amended at a later time.” (Tr., p.10-11) The Amended Petition does not affect, much less cure, the jurisdictional defects described below, and this Order applies to both petitions.

2 The foregoing discussion involves only the writ of habeas corpus “ad subjiciendum” which compels an inquiry into the cause of restraint. There are other writs of habeas corpus, but they are irrelevant here.

3 Compare Groseclose v. Dutton, 594 F. Supp. 949 (M.D. Tenn. 1984), where next friends, including a death row inmate, minister and two anti-death penalty organizations, were permitted to proceed. There, the real party in interest did not oppose their efforts and the petitioners demonstrated that his previous waiver of the right to file a habeas petition was involuntary. Groseclose, 594 F. Supp. at 951, 961-62.

4 The Court may take judicial notice of the information in the articles attached to the petition. Fed. R. Evid. 201 (b). Indeed, both sides cite these articles for different purposes.

5 In using the term “uninvited meddlers” in Whitmore, Chief Justice Rehnquist cited to United States ex rel. Bryant v. Houston, 273 F. 915, 916 (2d Cir. 1921). There, the named petitioner failed to disclose anywhere in her petition who she was, what relationship, if any, she had with the real party in interest or whether the real party was unable to file the petition himself. Chief Justice Rehnquist also cited to Rosenberg v. United States, 346 U.S. 273, 291-292, 75 S. Ct. 1152,1161-1162 (1953). There, the real parties in interest already had several attorneys but their habeas petition was prepared by another lawyer who sought to intervene. Justice Frankfurter noted that the legitimate counsel of record “simply had been elbowed out of the control of their case” by the lawyer who filed the habeas petition. Id.

6 As Justice Frankfurter stated in a different context, “Nor does law lag behind common sense.” Ludecke v. Watkins, 335 U.S. 160. 167, 68 S.Ct. 1429, 1432 (1948).

7 The court is not suggesting that the mere failure of a “next friend” to establish direct communication with the prisoner and obtain explicit authorization from him is enough to preclude “next friend” petitioners. If it were, then there would be an incentive for the government to keep all captives, even United States citizens, incommunicado. Although respondents are not advocating that unacceptable and illegal result, a too-expansive interpretation of “uninvited meddlers” could lead to it.

8 At the hearing today, Prof. Erwin Chemerinsky, one of the named petitioners (but not the author of petitioners’ court papers), argued that the requirement that “next friends” demonstrate a “significant relationship” with the real parties in interest should be relaxed where the real parties lack access to court. He urged that general principles of standing under the constitutional requirements of Art. Ill favor such an approach. The court chooses to apply the standards enunciated in the Whitmore-Massie line of cases and notes that in Whitmore the Supreme Court noted that the limitations on standing that it was applying were in fact consonant with Article III, and were not based merely on “prudential” limitations. 492 U.S. at 156 n. 1.

9 In Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S. Ct. 1123 (1973), the Supreme Court noted that a writ of habeas corpus is issued to the person who has allegedly detained the prisoner unlawfully and held that a federal court with jurisdiction over the custodian can exercise jurisdiction even if the prisoner is outside that court's jurisdiction.

10 Despite the clear holding of these cases, petitioners’ counsel argued in his brief that section 1391 permits this court to subject the respondents to jurisdiction on this basis.

11 The Supreme Court has “characterized as ‘well-established’ the power of the military to exercise jurisdiction over … enemy belligerents, prisoners of war or others charged with violating the laws of war.” Johnson, 339 U.S. at 286 (citations deleted).

12 In emphasizing the importance of sovereignty, the Court distinguished its earlier decision in In re Yamashita, 327 U.S. 1, 66 S. Ct. 340 (1946). There, a Japanese general convicted by an American Military Commission in the Philippines, challenged the authority of the Commission to try him. The Supreme Court denied his habeas petition on the merits. The Johnson court noted that, unlike the status of Guantanamo (see infra), the United States had “sovereignty” over the Philippines at the time, which is why Yamashita was entitled to access to the courts. Id. at 781.

13 It appears that the Guantanamo detainees will also be subjected to trial before military commission. On November 13, 2001, the President issued an Executive Order entitling members of Al Qaeda and other individuals associated with international terrorism who are under the control of the Secretary of Defense to be tried before “one or more military commissions” that will be governed by “rules for the conduct of the proceedings … [and] which shall at a minimum provide for … a full and fair trial, with the military commission sitting as the triers of both fact and law… .” See Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Register 57,833 (November 13, 2001). Thus, it appears that the detainees are similar to the petitioners in Johnson in this respect, too.

14 The cases on which petitioners mainly rely to avoid this result do not support their arguments. United States v. Corey, 232 F.3d 1166 (9th Cir. 2000), not a habeas case, merely reached the unexceptional conclusion that federal courts have jurisdiction over a criminal case charging a United States citizen with offenses committed at United States installations abroad. Cobb v. United States, 191 F.2d 604 (9th Cir. 1951) does not hold — indeed, rejected the view — that America's exclusive control over the Guantanamo Naval Base constitutes de jure sovereignty; Okinawa, not Guantanamo Bay, was at issue in Cobb and the court found that de jure sovereignty over Okinawa had not passed to the United States, so Okinawa was still a “foreign country” within the meaning of the Federal Tort Claims Act. Id. at 608. Finally, the judgment in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir. 1992) was vacated by the Supreme Court in Sale v. Haitian Centers Council, Inc., 509 U.S. 918, 113 S.Ct. 3028 (1993).

15 The President recently declared that the United States will apply the rules of the Geneva Convention to at least some of the detainees. See “U.S. Will Apply Geneva Rules to Taliban Fighters,” Los Angeles Times, February 8, 2002 at Al.