Courts Do Something Right

by Jim Lobe
by Jim Lobe

U.S. 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."

"Not 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 Union (ACLU).

"No 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.

New 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.

Justice 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.

The 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.

The 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.

Padilla's 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.

The 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.

In 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.

Both 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.

In both cases, the courts ruled against the administration's position.

In 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.

Moreover, 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.

While 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.

"After 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."

Amnesty 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."

The 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.

"Even 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.

"We 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 argued.

The 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.

In 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.

The 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."

The 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.

December 20, 2003

Jim Lobe is Inter Press Service's correspondent in Washington, DC.

Copyright © 2003 Inter Press Service

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