The U.S. Supreme Court ruled in the Lakhdar Boumediene case 5-4 that the prisoners in Guantanamo Bay have a constitutional right to go to federal court to challenge their continued detention, which in legal language is a procedure known as “habeas corpus,” said Washington, D.C.-based attorney Jonathan Weisgall, who represents Bikini Islanders who are appealing the dismissal earlier this year of their compensation lawsuit in U.S. courts.
The U.S. tested 23 nuclear weapons at Bikini from 1946-1958, including “Bravo” in 1954, the largest American hydrogen bomb ever tested. The Bikinians filed suit last year in the U.S. Federal Court of Claims seeking more than $1 billion in compensation, but the judge dismissed the claim earlier this year. It is now being appealed.
Last week’s Supreme Court decision is important for Bikini appeal because the judges said a Defense Department alternative that stripped U.S. federal courts of jurisdiction to hear petitions from Guantanamo detainees was inadequate — a situation similar to the Bikini islanders who are battling the U.S. contention that U.S. courts should have no jurisdiction to hear their claims because an alternative mechanism already resolved nuclear testing compensation claims.
“The court not only struck down the administration’s contention that the detainees have no rights but also said the system the (U.S.) administration has put in place to classify them as enemy combatants and review those decisions is inadequate,” Weisgall said Friday.
“As with Guantanamo, the U.S. has plenary power over the Marshall Islands and is attempting to pretend otherwise in order to create a Constitution-free zone where none of its actions have consequences,” Weisgall said. “The wrinkle here is that the U.S. entered into an Oagreement’ with its wards and dependents, but the effect is similar to (the) Boumediene (case): the U.S. tried to arrange things so that the Bikinians’ claims cannot be heard by ordinary federal courts, but rather could only be heard by a specially created forum (the Nuclear Claims Tribunal) that would not meaningfully address those claims.”
In 1986, U.S. courts dismissed an earlier Bikini claim after the U.S. Congress approved a nuclear settlement that included establishing the Nuclear Claims Tribunal by giving it $45 million to satisfy unresolved nuclear test claims in the Marshall Islands. The Tribunal awarded Bikini nearly $1 billion in damages and clean up funding as a result of the 23 U.S. nuclear tests, but paid only a small fraction of that amount for lack of funding.
Weisgall said the bottom line is that this Supreme Court decision “helps us, but by no means turns the case into a slam dunk.”
