- The Washington Times - Tuesday, March 11, 2003

WASHINGTON, March 11 (UPI) — A powerful federal appeals court Tuesday ruled that detainees captured in Afghanistan and held at a U.S. base in Cuba do not have access to the federal courts or the Constitution.

Relatives seeking to represent the detainees had filed suit against the conditions of their imprisonment, and had sought their release.

But the three-judge appeals panel in Washington, in what may become a landmark decision, said U.S. courts do not have jurisdiction over their confinement.

Though the ruling dealt only with detainees at Guantanamo Bay, Cuba, its effect will apply to any of what the courts are calling "enemy aliens" being held by the United States outside this country.

Many of the most dangerous terror suspects, for instance, are believed to be held at the al Bagram Air Force Base in Afghanistan.

The ruling does not apply to illegal alien detainees held on U.S. soil.

Reaction to Tuesday's ruling was swift.

A spokesman for Amnesty International USA, media director Alistair Hodgett, said in a statement that the ruling "violates the U.S.'s obligations under international law. Basic safeguards for the protection of prisoners apply throughout the

world, and the U.S. cannot create a rights-free zone.

"To hold people without charge and without access to legal counsel," he added, "risks the creation of an 'American gulag' for those detained in the course of the war on terror."

In one of the cases consolidated for Tuesday's ruling, the fathers and brothers of 12 Kuwaiti nationals being held at Camp X-Ray in Guantanamo

Bay filed a complaint against U.S. officials, including President Bush and Defense Secretary Donald Rumsfeld.

The complaint alleges that the detainees "were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to the United States."

U.S. forces were in Afghanistan following the Sept. 11, 2001, terror attacks in Washington, D.C., and New York.

U.S. troops and Afghan rebels toppled the Taliban regime, which had been protecting the al Qaida terror organization.

Also included in the consolidated case are two British and two Australian detainees whose relatives sought their release.

All of the detainees' relatives invoked the "Great Writ" in their complaints, the writ of habeas corpus. U.S. courts generally can conduct "habeas" or constitutional review of the imprisonment of people being held in the United States.

However, a federal judge ruled that in the case of the Guantanamo detainees no U.S. court had jurisdiction.

Tuesday, the appeals court upheld the judge.

The appeals court panel cited the Supreme Court's ruling in 1950's Johnson vs. Eisentrager.

In Eisentrager, 21 German prisoners filed more than 200 requests for original Supreme Court habeas review of their detention.

After the surrender of Germany in World War II, the 21 had assisted Japanese forces in Asia until VJ Day, and were captured in China.

The 21 were convicted by a U.S. military court of violating the laws of war and were transferred to Landsberg Prison in Germany.

The prisoners then asked for habeas review from a federal judge in Washington, claiming their detention violated the U.S. Constitution and the 1929 Geneva Convention.

Though the judge ruled that the U.S. courts had no jurisdiction, a federal appeals court reversed.

The Supreme Court in turn reversed the appeals court, saying that "the privilege of litigation" did not extend to the 21 Germans, who had never been held on U.S. soil.

The Supreme Court also held that U.S. courts should not interfere with the war effort.

Tuesday, the federal appeals court in Washington said "the detainees (in Cuba) are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them."

The was no immediate word on whether the detainees' relatives would ask for a rehearing by the entire U.S. Court of Appeals for the District of Columbia Circuit, or for review by the Supreme Court.

(No. 02-5251, Khaled A.F. Al Odah et al vs. USA et al)


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