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U.S.: Courts Reject Bush Detention Policies In Two Terror Cases

  • Jeffrey Donovan

Two U.S. civilian courts have struck a blow to the Bush administration's antiterror policies, ruling that the government is violating the civil rights of so-called "enemy combatants" held in the United States and at a U.S. naval base in Cuba.

Washington, 22 December 2003 (RFE/RL) -- The findings by key federal appeals courts in New York and San Francisco were the strongest legal rebuke to date of the government's policy of detaining some terror suspects indefinitely without criminal charges or access to legal counsel.

The New York court ruled on 18 December that President George W. Bush does not have the authority to hold a U.S. citizen arrested on American soil as an enemy combatant.

In another ruling in San Francisco, the court said the government cannot detain foreign enemy combatants indefinitely at the U.S. Navy base in Guantanamo Bay in Cuba, where hundreds of suspects have been held since being rounded up during the war in Afghanistan in late 2001.

Separately, a powerful British parliamentary committee attacked the British government's anti-terror measures on 18 December, urging the government to stop imprisoning foreigners without charge and to reopen debate on its package of post-September 11 antiterror laws, lest emergency powers be automatically revoked.

The U.S. rulings were welcomed by liberal human rights activists and conservative libertarians in the United States. Jamie Fellner, the U.S. program director for Human Rights Watch in New York, tells RFE/RL that since the 9/11 attacks, Bush has assumed the power to declare anyone an enemy combatant and detain them indefinitely, without regard to circumstances, citizenship, or legal due process.

"[Bush] was really declaring that he had the unilateral power to whisk someone away indefinitely, incommunicado, without access to a lawyer, family, without charges, simply on his say so. If that is allowed to stand, that is an enormous dismantling of human rights protection for every individual," Fellner said.

New Yorker Jose Padilla has been in custody in the United States for 19 months as a suspect in an alleged Al-Qaeda plot to detonate a radioactive "dirty bomb" -- a crude device capable of causing death and destruction.

In a 2-1 ruling, the New York court said only the U.S. Congress can authorize such a detention and ordered the government to release Padilla from military custody within 30 days.

The appeals panel also said that the government could transfer Padilla, a U.S. citizen who has been held incommunicado in a Navy prison, to a civilian authority that can bring criminal charges against him.

Padilla's lawyer, Donna Newman, told reporters on 18 December, "Congress has stated that nobody can be detained without a charge, my client has no charge pending, there have been a lot of allegations, but they refuse to charge my client with a crime yet they insist that the military has the right to detain him and the second circuit has said no, you do not, that's not what the law says."

But the Bush administration severely criticized the rulings, vowing to fight them all the way to the Supreme Court. White House spokesman Scott McClellan told reporters on Friday that the administration will seek to have Padilla's release delayed until the case is taken up by the U.S. Supreme Court, a process that could take months or years.

"The president's most solemn obligation is protecting the American people. We believe the second circuit ruling is troubled and flawed and the president has instructed the justice department to seek a stay and for the judicial review," McClellan said.

In the other case in San Francisco, the court ruled 2-1 that holding enemy combatants indefinitely at Guantanamo Bay is inconsistent with American law and raises serious concerns under international law. It also said the nearly 660 detainees should have access to lawyers.

The court's judges wrote that even in times of national emergency, such as the war on terrorism, the judicial branch has the obligation to preserve America's constitutional values and "to prevent the executive branch from running roughshod over the rights of citizens and aliens alike."

Fellner of Human Rights Watch says the rulings are unlikely to have an immediate impact on U.S. policy and expects both cases to end up at the U.S. Supreme Court.

But she says it is part of the "genius" of the U.S. system of government that the courts have the authority to review actions by the executive branch and the legislature to ensure that they are consistent with the constitution.

"And it is also true in this country that when the courts rule, the executive branch will honor what they say, although they may do so very, very slowly as we have seen, of course, following Supreme Court desegregation rulings, for example. But nevertheless, an administration won't simply defy the court," Fellner said.

The rulings strengthened the argument of those who criticized the administration's legal response to terrorism, including the controversial 2001 Patriot Act, which greatly expanded law enforcement's surveillance and investigative powers.

None of the Guantanamo Bay detainees has been charged with any crimes, though Pentagon officials suggest that military trials for some of the detainees could begin soon.

McClellan, citing a Supreme Court precedent in the case of German war prisoners held in China, said ruling on foreign detainees runs counter to 50 years of U.S. law. He argued that the administration's position has already been held up by a District of Columbia court and that the U.S. Supreme Court is already reviewing the matter.

Separately on 18 December, the Pentagon said that a Yemeni man held at Guantanamo Bay has been provided with a military lawyer, only the second at the base to receive defense counsel.

The move follows calls this week by an Australian lawyer and members of the French parliament for Washington to allow an Australian national and six Frenchmen detained in Cuba to be repatriated to face justice in their own countries.