SAN FRANCISCO – Two federal courts ruled that the U.S. military cannot deny prisoners access to lawyers or the American courts by detaining them indefinitely, dealing twin setbacks to the Bush administration's strategy in the war on terror.
Gherebi v. Bush, Rumsfeld
One of Thursday's rulings favored the 660 "enemy combatants" held at the U.S. naval base at Guantanamo Bay (search), Cuba. The other involved American citizen Jose Padilla (search), who was seized in Chicago in an alleged plot to detonate a radioactive "dirty bomb" and declared as an enemy combatant.
In Padilla's case, the New York-based 2nd U.S. Circuit Court of Appeals (search) ordered the former gang member released from military custody within 30 days and if the government chooses, tried in civilian courts. The White House said the government would appeal and seek a stay of the decision.
In the other case, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals ruled that prisoners held at Guantanamo Bay Naval Base should have access to lawyers and the American court system.
The White House said the ruling was inconsistent with the president's constitutional authority as well as with other court rulings.
"The president's most solemn obligation is protecting the American people," White House press secretary Scott McClellan said Thursday. "We believe the 2nd Circuit ruling is troubling and flawed."
An order by President Bush in November 2001 allows captives to be detained as "enemy combatants" if they are members of Al Qaeda, engaged in or aided terrorism, or harbored terrorists. The designation may also be applied if it is "the interest of the United States" to hold an individual during hostilities.
The Justice Department this week said such a classification allows detainees to be held without access to lawyers until U.S. authorities believe they have disclosed everything they know about terrorist operations.
But Padilla's detention as an enemy combatant, the New York court ruled 2-1, was not authorized by Congress and Bush could not designate him as an enemy combatant without such approval.
Michael Greenberger, a University of Maryland School of Law professor and former Clinton administration Justice Department official, said the government "is being painted into a corner that is not very favorable. How bad of a corner will be determined by the U.S. Supreme Court."
The court, Greenberger said, did not address the broader question of whether constitutional rights would be violated if Bush had congressional authority to designate somebody as an enemy combatant.
Padilla, a convert to Islam, was arrested in May 2002 at Chicago's O'Hare airport as he returned from Pakistan. Within days, he was moved to a naval brig in Charleston, S.C. The government said he had proposed the bomb plot to Abu Zubaydah, then Al Qaeda's top terrorism coordinator, who was arrested in Pakistan in March 2002.
In ordering his release from military custody, the court said the government was free to transfer Padilla to civilian authorities who can bring criminal charges. If appropriate, Padilla also can be held as a material witness in connection with grand jury proceedings, the court said.
Padilla's lawyer, Donna Newman, did not immediately return a telephone message for comment.
Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling "historic."
"It's a repudiation of the Bush administration's attempt to close the federal courts to those accused of terrorism," Dunn said.
Thursday's 2-1 decision out of San Francisco was the first federal appellate ruling to rebuke the Bush administration's position on the Guantanamo detainees who have been without charges, some for nearly two years. The administration maintains that because the 660 men confined there were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial.
The Supreme Court last month agreed to decide whether the detainees, who were nabbed in Afghanistan and Pakistan, should have access to the courts. The justices agreed to hear that case after the U.S. Court of Appeals for the District of Columbia ruled that the prisoners had no rights to the American legal system.
"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.
Stephen Yagman, the Los Angeles civil rights lawyer who filed the suit on behalf of Libyan detainee Faren Cherebi, said if the decision survives, the government "has to put up some evidence that there is a reason to hold these people and charge them, or give them up."
Justice Department spokesman Mark Corallo said the government's position is that "U.S. courts have no jurisdiction over non-U.S. citizens being held in military control abroad."
The Defense Department announced Thursday that the Pentagon had appointed a military defense lawyer for a terrorism suspect held at Guantanamo. Salim Ahmed Hamdan of Yemen becomes the second Guantanamo prisoner to be given a lawyer. Australian David Hicks got a lawyer earlier this month and recently met with an Australian legal adviser.
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