Published January 31, 2005
WASHINGTON – A federal judge ruled Monday that foreign terror suspects held in Cuba can challenge their confinement in U.S. courts and she criticized the Bush administration for holding hundreds of people without legal rights.
Judge Joyce Hens Green, handling claims filed by about 50 detainees at the U.S. Navy base at Guantanamo Bay (search), said the Supreme Court made clear last year that they have constitutional rights that lower courts should enforce.
"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats," she wrote, "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 years."
Green also ruled that hearings set up by the government to determine if the prisoners are "enemy combatants" are unconstitutional. Those hearings, called Combatant Status Review Tribunals (search), had been criticized by civil rights groups because detainees are not represented by lawyers and are not told of some of the evidence against them — including some information that the judge said may have been obtained by torture or coercion.
"Her opinion sends a message to the rest of the world that democracy is still here," said Barbara Olshansky, an attorney with the New York-based Center for Constitutional Rights (search), which is representing detainees.
The decision conflicts with a ruling two weeks ago by another federal judge in the same court who considered a similar lawsuit brought by a different group of detainees. U.S. District Judge Richard Leon found last year's Supreme Court ruling did not provide Guantanamo detainees the legal basis to try to win their freedom in American courts.
At the White House, presidential spokesman Scott McClellan took issue with the ruling, noting that it was directly at odds with the earlier one and saying the Justice Department "will review this matter."
About 550 detainees are being held at the Navy base, accused of being enemy combatants. The prisoners, all men from 42 countries, were mainly swept up in the U.S.-led war in Afghanistan.
Leon concluded that foreign citizens captured and detained outside the United States have no rights under the Constitution or international law.
Green flatly disagreed. She said detainees may fight their indefinite detentions as a violation of their constitutional due process rights. And some also may have claims that their rights were violated under the Geneva Convention (search), she said.
In addition, Green said that the government's definition of whom it can detain indefinitely may be too broad. She cited as an example given in an earlier court hearing — "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."
Under the military appeals process, detainees may challenge their status as enemy combatants at the review tribunals as well as at annual administrative hearings that determine whether they still pose a threat or have valuable intelligence.
In addition, detainees may be subject to military trials. However, defendants in such cases have fewer legal rights than prisoners of war. U.S. District Judge James Robertson ruled in November that the trials denied basic legal rights and ordered the military to come up with a new procedure. The government is appealing.