Johnson Pacific Magazine June 21, 2008

Bikini Islanders attempting to overturn the recent dismissal of their billion-dollar compensation lawsuit against the United States government have received help from an unexpected source.

A U.S. Supreme Court ruling last week on the rights of terror suspects being held at Guantanamo Bay could help the Bikini case, which is now pending in a U.S. federal appeals court, Bikini attorney Jonathan Weisgall says.

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 Weisgall, who is based in Washington, D.C.

The U.S. tested 23 nuclear weapons at Bikini, including “Bravo” in 1954, the largest American hydrogen bomb ever tested. The tests were conducted while the Marshall Islands was under a United Nations Trusteeship administered by the United States.

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.

The recent Supreme Court decision is important for Bikini 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. argument 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.

“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 ‘agreement’ 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.”

Shortly after the first Compact of Free Association came into effect in 1986, U.S. courts dismissed an earlier Bikini claim because the courts said the U.S. Congress had approved a political 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.