Pentagon's Guantanamo Courts Ruled Illegal
U.S. federal court judge has ruled that military tribunals initiated
by the Pentagon to determine the status of terrorist suspects held
at the naval base at Guantanamo Bay, Cuba, are unconstitutional
because they do not satisfy minimal due process requirements.
long-awaited decision by veteran judge Joyce Hens Green deals a
new setback to the George W. Bush administration's claims of broad
executive authority to conduct its global "war on terrorism"
and will almost certainly be appealed to a higher court.
respectfully disagree with the decision," said White House
spokesman Scott McClellan after the ruling was made public. He pointed
to a Jan. 19 ruling by another federal judge, Richard Leon, that
concluded that detainees held at Guantanamo had no legal way to
challenge their detention in federal court.
detainees' lawyers hailed the decision as a major victory that,
in the words of one, "sent a hopeful message to the world that
despite the administration's continued refusal to acknowledge the
unlawfulness of its behavior, our democratic institutions are working
hard to ensure justice is preserved."
upheld, Green's decision would deal a mortal blow to the Pentagon
courts, called Combatant Status Review Tribunals (CSRTs), which
have been hearing the cases of some 550 detainees who remain at
Guantanamo since late last summer.
tribunals were launched after the U.S. Supreme Court ruled last
June that detainees held as "enemy combatants" by the
U.S. have a right to challenge their status before an independent
ruling, however, did not explicitly order the administration to
permit detainees to appeal directly to the federal courts. The Pentagon's
subsequent rush to set up its own tribunals to review the status
of the detainees appears to have been an effort to satisfy the court's
opinion without surrendering jurisdiction.
a Bush appointee, essentially went along with the Pentagon's argument
that the independent tribunal required by the Supreme Court did
not necessarily have to be a federal court.
to rule on a habeas corpus petition brought by seven detainees,
he dismissed the case, arguing that while they had the right to
file such a petition, "no viable legal theory" existed
to grant relief because courts lacked the power to review the executive's
decision to detain "nonresident aliens, outside of the United
States, during a time of armed conflict."
Green, who was appointed to the bench by former President Jimmy
Carter, clearly rejected that interpretation in her decision Monday,
setting up what will probably be an expedited appeal to the U.S.
Court of Appeals for the District of Columbia Circuit or, possibly
directly to the Supreme Court.
would be far easier for the government to prosecute the war on terrorism
if it could imprison all suspected 'enemy combatants' at Guantanamo
Bay without having to acknowledge and respect any constitutional
rights of detainees," she wrote.
this nation unquestionably must take strong action under the leadership
of the commander in chief to protect itself against enormous and
unprecedented threats," she went on, "that necessity cannot
negate the existence of the most basic fundamental rights for which
the people of this country have fought and died for well over 200
found that the CSRTs failed to meet "constitutional due process
requirements in several respects," most importantly, not making
available to defendants evidence that the government believes should
be secret. In many cases, according to the tribunals' own records,
that evidence includes statements by other suspected terrorists.
to Green, that provision denies them "a fair opportunity to
rebut" their classification as enemy combatants. She also noted
that some of the statements used against detainees may have been
obtained through physical or psychological abuse that would render
it inadmissible in a court of law.
also suggested that "personal representatives"
nonlawyers chosen by the tribunal to represent the detainees
also fell short of constitutional requirements.
indicated further that the government's definition of "enemy
combatant" and its use against detainees, some of whom may
be eligible for prisoner of war (POW) status under the Geneva Convention,
was itself too vague and too broad.
many of these individuals may never have been close to an actual
battlefield and may never have raised conventional arms against
the United States or its allies, the military nonetheless has deemed
them detainable as 'enemy combatants' based on conclusions that
they have ties to the al-Qaeda network or other terrorist organizations,"
a number of detainees captured in Afghanistan and released as long
as three years later have complained that they were simply "rounded
up" by militias who delivered them to U.S. forces, who in turn
assumed that they were tied to the Taliban or al-Qaeda.
oral arguments, Green had asked a government attorney whether "a
little old lady in Switzerland who writes a check to what she thinks
is a charity that helps orphans in Afghanistan but [what] really
is a front to finance al-Qaeda activities" might be deemed
an "enemy combatant." The attorney had replied affirmatively.
judge also stressed the importance of providing full due-process
guarantees to detainees, particularly when the administration asserted
its right to hold "enemy combatants" until the war on
terrorism is completed.
government has conceded that the war could last several generations,"
she wrote, "making it possible, if not likely, that 'enemy
combatants' will be subject to terms of life imprisonment at Guantanamo
decision reaffirms that the Guantanamo detainees cannot be imprisoned
outside the law, that they have a constitutional right to a fair
hearing and that evidence resulting from torture and coercion cannot
be used to continue their imprisonments," said Michael Ratner,
president of the Center for Constitutional Rights (CCR), which represented
judge also found that it was illegal for the President to unilaterally
determine that an entire group of the Guantanamo prisoners were
not POWs protected by the Geneva Conventions," he noted, adding,
"This ruling has the potential to bring the U.S. back into
the fold of nations under law. It's about time."
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2005 Inter Press Service