Judge Grants Captives Access to U.S. Courts

Foreign terrorism suspects held at Guantanamo Bay, Cuba, can challenge their confinement in U.S. courts because military tribunals set up to handle their cases do not protect their rights, a federal judge ruled Monday.

U.S. District Judge Joyce Hens Green said tribunals set up by the Pentagon to determine whether the suspects were “enemy combatants” violated the U.S. Constitution and in some cases the Geneva Convention governing treatment of prisoners of war. She rejected the Bush administration’s request to throw out lawsuits filed by 54 detainees protesting their imprisonment at the U.S. naval base in Cuba.

The case is one of several that will determine whether the detainees can appeal their imprisonment through the U.S. legal system or must plead their cases in special tribunals set up by the administration.

“Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats,” Green wrote, “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.”

In her decision, the latest legal blow against the administration’s system for holding and trying terrorism suspects, Green said that the Supreme Court made clear in a June ruling that the prisoners had constitutional rights and that lower courts must enforce them. In that ruling, the high court found that the prisoners could seek judicial review of their imprisonment.

“It would be far easier for the federal 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,” Green wrote. “That, however, is not the relevant legal test.”

The tribunals have been criticized by civil rights groups because detainees are not represented by lawyers and are not told of some of the evidence against them, including information that the judge said might have been obtained by torture or coercion.

“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, a lawyer with the New York-based Center for Constitutional Rights, which represents detainees.

The decision conflicts with a ruling two weeks ago by a different judge in the same court who heard arguments by a different group of detainees. U.S. District Judge Richard Leon threw out requests by seven suspected terrorists for court review of their detention, finding that last year’s Supreme Court ruling did not provide Guantanamo detainees the legal basis to try to win their freedom in U.S. courts.

Leon concluded that foreign citizens captured and detained outside the United States had no rights under the Constitution or international law.

The conflicting rulings are likely to be taken up by the U.S. Court of Appeals for the District of Columbia Circuit, or potentially by the Supreme Court.

The government has argued that federal court review of detainees’ cases was unnecessary because military tribunals meet the Supreme Court’s demand for legal protection for the inmates.

At the White House, presidential spokesman Scott McClellan took issue with Green’s ruling, noting that it was at odds with the earlier one. He said the Justice Department would “review this matter.”

The Justice Department said in a statement that there was no constitutional basis for granting aliens captured by the military outside the U.S. and classified as enemy combatants due process rights under the Constitution.

“We believe the first district court to resolve the claims of enemy combatants detained at Guantanamo did so correctly, and properly dismissed the petitions,” the statement said.

About 550 detainees are being held at Guantanamo Bay. The prisoners, men from 42 countries, were mainly swept up in the U.S.-led war in Afghanistan.

Green wrote that she strongly disagreed with Leon’s ruling, saying the indefinite detentions could be fought as a violation of detainees’ due process rights.

In her ruling, she pointed out that the administration had acknowledged the war on terrorism could last generations. That, she wrote, could leave the detainees serving life terms without being tried or convicted of a crime.

Regulations on the detainees say they can be held until the war on terrorism is over or until military authorities decide it is safe to release a particular prisoner.

Under the military appeals process, detainees may challenge their status as enemy combatants at the review tribunals as well as at annual administrative hearings that determine whether they pose a threat or have valuable intelligence.

In addition, detainees may be subject to trials by a World War II-era military commission system reinstituted by the Bush administration. U.S. District Judge James Robertson ruled in November that the military commission trials denied basic legal rights and ordered the military to come up with a new procedure. The government is appealing.