Lawyers for Detainees Argue Case to Appeals Court

Declaring that foreigners captured during the U.S. war on terrorism have rights, attorneys for detainees held without charges at Guantanamo Bay Naval Base in Cuba pleaded for help Monday from a skeptical federal appeals court.

Sixteen people from Australia, Britain and Kuwait, some held more than a year, are seeking “the most modest of rights ... we want access to an impartial tribunal,” attorney Thomas Wilner said.

The three-judge panel questioned whether it has authority to intervene and whether the prisoners held by the U.S. military are entitled to some form of due process. Two of the three judges ruled three years ago that a foreign entity without property or presence in the United States has no constitutional rights.

A. Raymond Randolph, appointed to the appeals court by former President Bush, is one of the judges hearing the Guantanamo Bay case, as is Stephen Williams, who was appointed during the Reagan administration. Both were part of the panel in the case three years ago. The third judge hearing the detainees’ case is Merrick Garland, appointed by President Clinton.

The U.S. has been involved in many wars in its history, “but this is the first time we have sacrificed the rule of law,” said Wilner, who represents 12 Kuwaitis.

“The government says no court in the world may hear from my clients,” said Joe Margulies, hired by the families to represent the other detainees in the case. “Guantanamo is unique. It is utterly outside the law.”

The detainees’ families have gone to the appeals court because U.S. District Judge Colleen Kollar-Kotelly ruled four months ago that the Guantanamo Bay prisoners are not in the U.S. and thus do not fall under federal court jurisdiction.

Seized by the U.S. in the Spanish-American War and leased from Cuba for the last century, Guantanamo Bay is a 45-square-mile area on the southeastern tip of Cuba now holding nearly 600 detainees from more than 40 countries, including about 60 Pakistanis and about 100 Saudi Arabians. None of the detainees have been allowed to see their families or to have access to attorneys. A handful of Afghan and Pakistani detainees have been sent home after being cleared of terrorist suspicions.

Those in the court case were picked up in Afghanistan and Pakistan after last year’s terrorist attacks on the World Trade Center and the Pentagon.

The detainees’ situation is “identical” to that of German nationals held in a German prison who were denied access to U.S. courts in a 1950 Supreme Court ruling, Deputy Solicitor General Paul Clement said.

Unlike the detainees in Cuba, the Germans were charged and convicted before a military commission in China after Germany surrendered in World War II, the lawyers for the Guantanamo Bay detainees pointed out.

The detainees are being held at Guantanamo Bay for two reasons: to get them away from the battlefield and to facilitate intelligence gathering, Clement said. He added that investigators go back to the detainees for additional questions as the U.S. gathers more information from captured Al Qaeda suspects.

In arguments that lasted an hour and a half -- three times the scheduled 30 minutes -- the appeals judges pointed to one of their own rulings in 1999 that related to terrorism. In it, the appeals court ruled that it was not for the judges to decide whether organizations hostile to the governments of Iran and Sri Lanka committed terrorist acts. The groups were seeking to be removed from the State Department’s list of terrorist organizations.