- The Washington Times - Tuesday, February 1, 2005

A federal judge in Washington ruled yesterday that some suspected terrorists detained as “enemy combatants” at the U.S. Navy base at Guantanamo Bay, Cuba, have constitutionally guaranteed rights to challenge their confinement in U.S. courts.

U.S. District Senior Judge Joyce Hens Green said there was “no question” the rights asserted by 54 Guantanamo detainees in a case pending in her court were among “the most fundamental rights recognized by the U.S. Constitution,” and that they had the right to due process.

The ruling rejected an appeal by the Bush administration to dismiss lawsuits brought by the 54 detainees, who had challenged their continued confinement, and sets the stage for additional legal fights over the rights of suspected terrorists. The Justice Department already said it will appeal the ruling.

“Of course it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected ‘enemy combatants’ at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees,” said Judge Green, who was appointed to the bench in 1979 by President Carter.

“Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, 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,” she said in the 75-page opinion.

Judge Green also questioned the procedures implemented by the government to confirm that those detained were enemy combatants.

“Although detainees at Guantanamo Bay not subject to prosecutions could suffer the same fate as those convicted of war crimes — potentially life in prison, depending on how long America’s war on terrorism lasts — they were not given any significant procedural rights to challenge their status as alleged enemy combatants,” Judge Green said.

The judge, who came out of retirement to consider the merits of several pending lawsuits on behalf of Guantanamo detainees, noted that from the beginning of 2002 through at least June 2004, the majority of those being held but not charged had not been informed of the basis on which they had been detained, were not permitted access to counsel, were not given an opportunity to challenge their enemy combatant status and were held incommunicado.

Her ruling is in conflict with an opinion issued Jan. 19 by U.S. District Judge Richard Leon, also in Washington, who threw out similar lawsuits by Guantanamo detainees challenging their continued detention, ruling that Congress had authorized President Bush to order the detention of enemy combatants for the duration of the war on terror.

“The petitioners are asking this court to do something no federal court has done before: evaluate the legality of the (president’s) capture and detention of nonresident aliens, outside the United States, during a time of armed conflict,” Judge Leon said. “In the final analysis, the court’s role in reviewing the military’s decision to capture and detain a nonresident alien is, and must be, highly circumscribed.”

Judge Leon, appointed to the bench in 2002 by Mr. Bush, said he found “no viable legal theory exists” by which a court could order the detainees’ release.

White House spokesman Scott McClellan said the administration would “respectfully disagree with the decision” by Judge Green, noting Judge Leon’s earlier ruling.

The Justice Department said the conflicting rulings will ultimately have to be resolved by the Court of Appeals, and the department would explore options for expeditiously resolving the issues.

“There is no basis in the Constitution, or in history, for according aliens captured by the military outside the United States and classified as enemy combatants ‘due process’ rights under the Constitution, based on the mere fact that they are confined — for operational and security reasons — on foreign property that has been leased by the United States,” the department said.

“Even if the enemy aliens at Guantanamo could claim ‘due process’ rights under the Constitution, there is nothing in our historical tradition that would entitle those aliens to all classified intelligence information and sources used to classify them as enemy combatants or to demand a lawyer to assist them in claiming that they were erroneously classified,” it said.

The Center for Constitutional Rights (CCR), which brought and won a case last year in which the Supreme Court ruled that Guantanamo detainees had the right to challenge their detention in federal court, called Judge Green’s ruling “a major victory for the detainees and for civil liberties.”

“Judge Green has sent a hopeful message to the world that despite the administration’s continued refusal to acknowledge the unlawfulness of its behavior, our democratic institutions are working hard to ensure justice is preserved,” said Barbara Olshansky, CCR’s deputy legal director.

About 550 inmates from 42 countries are held at Guantanamo, many detained while fighting against U.S. troops in Afghanistan. In addition, U.S. authorities also are detaining several suspected terrorists who were captured in other areas of the world, including Gambia, Zambia, Bosnia-Herzegovina and Thailand.

They were detained in accordance with a joint resolution passed by Congress in the wake of September 11 giving Mr. Bush authority to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks,”

All of those detained at Guantanamo Bay were categorized as enemy combatants.

Judge Green said there was “nothing impracticable and anomalous in recognizing that the detainees at Guantanamo Bay have the fundamental right to due process of law,” and recognizing that right “would not cause the United States government any more hardship than would recognizing the existence of constitutional rights of the detainees had they been held within the continental United States.”


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