WASHINGTON – A federal appeals court Thursday questioned the Bush administration's handling of detainees at Guantanamo Bay, suggesting the judiciary might have authority to delve into the conduct of military tribunals which have categorized almost all of the inmates as enemy combatants (search).
The two hours of arguments were in sharp contrast to those of several years ago when the appeals court suggested detainees at the Guantanamo Naval base were not entitled to have access to the U.S. courts, and then ruled against them. The U.S. Supreme Court reversed that decision a year ago.
On Thursday, a panel of three appeals court judges — two appointed by Republican presidents and one by a Democratic president — aggressively questioned Justice Department attorney Gregory Katsas about the possibility of court scrutiny over the detainee review process.
"There is nothing in the habeas statute that requires us to defer to a military tribunal (search)," A. Raymond Randolph, an appointee of President Bush's father, told Katsas. The other judges on the panel are David Sentelle, an appointee of President Reagan, and Judith Rogers, an appointee of President Clinton.
The detainees are not allowed to have legal representation before the tribunals and cannot see classified information being used to classify them as enemy combatants.
Lower court judges are divided on the detainee procedures at Guantanamo Bay (search). U.S. District Judge Joyce Hens Green ruled that the tribunal hearings are unconstitutional. U.S. District Judge Richard Leon threw out a lawsuit by some of the detainees, saying the place for them to challenge the procedures is before the U.S. military, not in civilian courts.
Katsas said the detainees are granted many rights by the tribunals, which ruled that all but 38 of 596 detainees were enemy combatants and were not entitled to prisoner-of-war protections under the Geneva Conventions (search).
The government is trying to beat back challenges on behalf of dozens of the Guantanamo Bay detainees who say they are not being afforded a legally proper opportunity to challenge their status as enemy combatants.
In the nearly three years since the U.S. military started transporting detainees to the Navy prison camp in Cuba, the words Guantanamo Bay have become synonymous with the Bush administration's tactics in the War on Terror: indefinite detention and no legal rights.
Evidence of detainee abuse at Guantanamo Bay has put the administration on the defensive and the government is trying to deal with the problem by downsizing the prison camp, returning many of the detainees to their home countries.
In the meantime, the government has dug in for a protracted legal battle, defending the course it set in late 2001 with Bush's declaration that all suspected terrorists are enemy combatants rather than prisoners of war entitled to protections under international treaty.
The Pentagon says it is holding 505 prisoners at the Guantanamo Bay prison compound. Many were captured in Afghanistan in the months following the U.S. invasion in October 2001, and some have been there since the detention compound was opened in January 2002.