Courts Do Something Right
by Jim Lobe
civil liberties and human rights groups Thursday hailed the one-two
punch delivered by two federal appeals courts against the Bush administration's
refusal to recognize basic due-process rights of alleged U.S. and
foreign detainees held as "enemy combatants" in Washington's
"war on terrorism."
one, but two federal courts have rebuked the President today for
his belief that he should be able to lock people up without basic
access to our justice and without Congressional approval,"
said Anthony Romero, executive director of the American Civil Liberties
President should be able to assume such unilateral authority over
people's freedoms, most crucially during times of threat to our
national well-being," he added.
York-based Human Rights Watch (HRW) also hailed the two decisions
by the Second and Ninth Circuit Courts of Appeal as
a major vindication for basic liberties. "Both (decisions)
attacked the Bush administration's view that a war metaphor can
justify restrictions on basic criminal justice rights away from
a traditional battlefield," Kenneth Roth, HRW's
executive director, told the New York Times.
Department officials, who said they believed the two 2-1 decisions
were flawed, indicated they may seek further review. Both cases
could well wind up in the Supreme Court, according to legal analysts
on both sides.
first case involved an appeal by lawyers for Jose Padilla, a U.S.
citizen arrested in Chicago in May 2002 as a material witness in
the government's ongoing counter-terrorism investigation and subsequently
designated by Bush as an "enemy combatant." He was subsequently
transferred to a high-security naval brig in Charleston, South Carolina,
where he has been refused permission to communicate with his family,
with a lawyer, or any nonmilitary personnel for 18 months.
government contends that Padilla met with members of al Qaeda in
Afghanistan and Pakistan where he developed a plan with them to
build and detonate a radiological "dirty bomb" in the
U.S. and had returned there to carry out the plan, although he carried
no arms or explosives when he was arrested at O'Hare Airport.
lawyers claimed, among other things, that as a U.S. citizen who
was arrested in this country, their client was entitled to full
due-process rights guaranteed under the U.S. Constitution and could
not be denied them by the executive branch acting on its own.
second case was based on a petition for habeas corpus by the brother
of a Libyan, Salim Gherebi, captured in Afghanistan two years ago
and held, along with more than 600 other so-called "enemy combatants"
at the U.S. naval base at Guantanamo Bay, Cuba. His lawyer contended
that, even though his client was being held outside U.S. territory,
Washington was obliged to provide him with certain basic protections
under U.S. law, including the right to contest his detention in
a U.S. court.
a separate case earlier this year, the Circuit Court of Appeals
for the District of Columbia upheld the administration's position
that "enemy combatants" held at Guantanamo Bay were not
entitled to a court review of their detention, but that ruling is
not binding on the Ninth Circuit which is based in San Francisco.
cases decided Thursday tested the authority of the executive branch
to detain individuals it deemed to be "enemy combatants"
without explicit authorization from Congress or providing them recourse
to the U.S. court system.
both cases, the courts ruled against the administration's position.
the first, the Second Circuit Court of Appeals in New York ruled
explicitly that the president lacked the power to authorize the
unilateral detention of a U.S. citizen. "The president, acting
alone, possesses no inherent constitutional authority to detain
American citizens seized within the United States, away from the
zone of combat, as enemy combatants," the majority ruled.
the two judges went on, a 1971 law designed to prevent any repetition
of the notorious internment of Japanese-Americans during World War
II expressly forbids federal detention of any U.S. citizen in the
United States without congressional authorization. It ordered the
government to release Padilla from military custody within 30 days,
although it noted that Padilla could continue to be held in civil
custody by, for example, charging him with a crime in civilian court
or seeking his detention on some other basis.
White House spokesman called the court's ruling "troubling
and flawed" and indicated the government may seek a stay of
the release order, rights groups hailed the judgment as a breakthrough.
the internment of Japanese-American citizens during World War II,
we learned our lesson as a nation," said Deborah Pearlstein,
an attorney at the Lawyers Committee for Human Rights (LCHR) in
New York. "Congress passed a law saying that 'no citizen shall
be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress.' The court's decision today makes
clear that Congress means what it said, and the President is not
above the law. This decision is a victory for the Constitution."
International U.S.A director William Schulz said he, too, "welcomed
the decision" but voiced concern that "it does not seem
to have been made in recognition of basic human rights principles
or constitutionally guaranteed protections. Schulz noted that, while
it denied the executive branch the ability to detain individuals
without access to a lawyer, "it also laid the groundwork for
future detentions ... providing he has permission from Congress."
ruling in the Gherebi case was more sweeping with the two-judge
majority arguing that indefinite detention by the executive branch
without charges defied basic principles of U.S. jurisprudence.
in times of national emergency indeed, particularly in such
times it is the obligation of the Judicial Branch to ensure
the preservation of our constitutional values and to prevent the
Executive Branch from running roughshod over the rights of citizens
and aliens alike," Judge Stephen Reinhardt wrote for the majority.
simply cannot accept the government's position that Executive Branch
possesses the unchecked authority to imprison indefinitely any persons,
foreign citizens included, on territory under the sole jurisdiction
and control of the United States, without permitting such prisoners
recourse of any kind to any judicial forum, or even access to counsel,
regardless of the length or manner of their confinement," he
Ninth Circuit's ruling ran directly counter to that of the D.C.
Circuit. The Supreme Court last month agreed to hear an appeal of
the D.C. Court's decision, although oral arguments before the Court
are not likely to take place until late February at the earliest.
Lawyers said the Supreme Court, whose ruling will be binding all
federal courts, may now combine the two cases.
another setback to the administration earlier this month, the Ninth
Circuit, which is widely considered the most liberal of the federal
appeals courts, declared unconstitutional significant parts of an
anti-terrorist criminal statute that has been used as a key tool
in a number of recent criminal prosecutions in the war on terrorism.
administration has argued that a 1996 anti-terrorism statute, which
was broadened by the 2001 U.S.A Patriot Act, makes it a crime to
provide material support to terrorist organizations without regard
to whether the donor knows that the organization has been designated
a terrorist group. In addition to financial contributions, "material
support" was defined in the Patriot Act as including the provision
of "personnel" or "training."
Court held that the prohibitions on "personnel" and "training"
were too vague and that the government's insistence that donors
who were not aware of the organization's terrorist status or activities
could be prosecuted under the law risked punishing "moral innocents"
in violation of due process. The Justice Department has indicated
it will appeal the decision.
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2003 Inter Press Service