- The Washington Times - Wednesday, March 12, 2003

A federal appeals court yesterday slammed shut the doors of every federal courthouse in America to fighters captured on Afghan battlefields and imprisoned at Guantanamo Bay, Cuba.
"No court in this country has jurisdiction to [hear constitutional claims of] the Guantanamo detainees, even if they have not been adjudicated enemies of the United States," a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia unanimously ruled.
The ruling, which is certain to be appealed to the Supreme Court, was the first by an appeals court that directly determined whether the 600-plus al Qaeda and Taliban combatants at Guantanamo have the right to lawyers or court review of their detention.
"If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty," the ruling said.
The ruling disposed of three cases filed by families of 12 Kuwaitis, two Australians and two Britons, all of whom denied being "enemy combatants." They all said they were neither al Qaeda nor terrorists.
That does not matter because they are aliens captured by the military and held on foreign soil, said the opinion written by Circuit Judge A. Raymond Randolph, a 1990 Bush nominee, and joined by Senior Circuit Judge Stephen F. Williams, a Reagan appointee, and Circuit Judge Merrick B. Garland, a Clinton choice.
"They are now abroad, they are in the custody of the American military, and they have never had any presence in the United States," the court said.
Meanwhile, a trial judge in New York affirmed his own December ruling that Jose Padilla, 31, a U.S. citizen accused of planning to explode a radiologically dirty bomb, may meet with lawyers.
U.S. District Judge Michael Mukasey said government declarations that Padilla is an enemy combatant should not keep a lawyer from visiting him in a military brig.
Yesterday's D.C. Circuit ruling relied almost entirely upon the 1950 Johnson vs. Eisentrager decision in which the Supreme Court ruled it did not have jurisdiction to issue writs of habeas corpus for aliens detained outside sovereign U.S. territory.
Therefore, "the privilege of litigation" was not available to the 21 German civilians convicted by military tribunal of war crimes for aiding Japanese forces in China following Germany's surrender in May 1945. Six other Germans were acquitted.
"The most fundamental difference between that case and this is those people got the very rights we're denied here the right to counsel, the right to trial, the right to acquittal," said Thomas Wilner, Washington attorney for some Guantanamo detainees.
He said that the new ruling could apply to detention of other foreigners outside the United States in peacetime, and that retaliation could jeopardize Americans.
"This decision would allow the United States to set up prison camps for foreigners outside the U.S. and totally outside the law. That is what they've done, and this authorizes it," Mr. Wilner said.
The Justice Department did not immediately comment on the ruling.
In a separate opinion, Judge Randolph delved further into the extent of presidential power, saying it did not matter that Congress had not declared war.
"The level of threat a detainee poses to United States interests, the amount of intelligence a detainee might be able to provide, the conditions under which the detainee may be willing to cooperate, the disruption visits from family members and lawyers might cause these types of judgments have traditionally been left to the exclusive discretion of the Executive Branch, and there they should remain," Judge Randolph said.
By even considering the case and issuing an opinion, the D.C. Circuit split with a 9th Circuit decision that last year rejected a "next friends" claim by clergy and lawyers.
Yesterday's ruling defended the historic right of "next friends" to intervene on behalf of those who cannot communicate with a court, saying that procedure, long recognized in the United States, derives from 17th-century English common law.

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