Appeals Court Casts Doubt on Whether It Can Help Gitmo Detainees

Declaring that foreigners captured in the war on terrorism have rights, attorneys for detainees held without charges at Guantanamo Bay Naval Base pleaded for help Monday from a skeptical federal appeals court.

Sixteen people from Australia, Britain and Kuwait, some captive for more than a year, are seeking "the most modest of rights ... we want access to an impartial tribunal," said attorney Thomas Wilner.

The three-judge panel questioned whether it has authority to intervene and whether the prisoners jailed by the U.S. military at Guantanamo Bay, Cuba, are entitled to some form of due process. Two of the three judges ruled three years ago that a foreign entity without property or presence in the United States has no constitutional rights.

A. Raymond Randolph, appointed to the appeals court by President Bush's father, is one of the judges hearing the Guantanamo case, as is Stephen Williams, who was appointed during the Reagan administration. Both were part of the panel in the case three years ago. The third judge hearing the detainees' case is Merrick Garland, a Clinton appointee.

The United States has been involved in many wars in its history, "but this is the first time we have sacrificed the rule of law," said Wilner, who is representing 12 Kuwaitis.

"The government says no court in the world may hear from my clients," said Joe Margulies, hired by the families to represent the other detainees in the case. "Guantanamo is unique. It is utterly outside the law."

The detainees' families have gone to the appeals court because U.S. District Judge Colleen Kollar-Kotelly ruled four months ago that the Guantanamo prisoners are not in the United States and thus do not fall under the jurisdiction of federal courts.

Seized by the United States in the Spanish-American War and leased from Cuba for the past century, Guantanamo is a 45-square-mile area on the southeastern tip of Cuba now holding nearly 600 detainees from more than 40 countries, including about 60 Pakistanis and some 100 Saudi Arabians. None of the detainees have been allowed to see their families or to have access to attorneys. A handful of Afghan and Pakistani detainees have been sent home from Guantanamo after being cleared of terrorist suspicions.

Those in the court case were picked up in Afghanistan and Pakistan following the Sept. 11 attacks.

The detainees' situation is "identical" to that of German nationals held in Landsberg prison in Germany who were denied access to U.S. courts in a 1950 Supreme Court ruling, said Deputy Solicitor General Paul Clement.

Unlike the detainees at Guantanamo, the Germans were charged and convicted before a military commission in China after the German surrender in World War II, the lawyers for the Guantanamo detainees pointed out.

The detainees are being held at Guantanamo Bay for two reasons — to get them away from the battlefield and to facilitate intelligence gathering, said Clement. He said that investigators go back to the detainees for additional questions as the U.S. gathers more information from newly captured members of Al Qaeda.

In arguments that lasted an hour and a half — three times the scheduled 30 minutes — the appeals judges pointed to one of their own rulings in 1999 that related to terrorism. In it, the appeals court ruled that it was not for the judges to decide whether organizations hostile to the governments of Iran and Sri Lanka committed terrorist acts. The groups were seeking to be removed from the State Department's list of terrorist organizations.

The 1999 ruling by Randolph and Williams stated that "a foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise."

The government says it is of no legal significance that the detainees coming to the appeals court for assistance are from countries friendly to the United States.

The 12 Kuwaitis were in Afghanistan doing charity work and weren't there to fight, their families have said.

British Muslims Asif Iqbal, who is in his early 20s, and Shafiq Rasul, who is in his mid-20s, flew to Pakistan and then to Afghanistan just days before the Sept. 11 attacks.

There is little doubt that Australian David Hicks, 26, had joined the Taliban when he was captured by U.S.-backed Northern Alliance forces in Afghanistan, Australian Prime Minister John Howard has said. Hicks' family denies that he trained with Al Qaeda.

Australian Mamdouh Habib, 47, was captured by U.S. forces in Pakistan on suspicion of links to Al Qaeda. Habib's wife denies any Al Qaeda connection. The couple have four children.

In a separate case, a federal appeals court in San Francisco two weeks ago blocked a legal challenge to the detention of the Guantanamo prisoners, saying a coalition of clergy members and professors could not represent them.