Political fallout, economic drain and public criticism deepen over U.S. security policies (FCN, 10/16/2003)

WASHINGTON (IPS/GIN) – Two federal appeals courts have ruled that President George W. Bush does not have the power to detain “enemy combatants” in his “war on terrorism” without providing them basic rights to justice.

Civil liberties and human rights groups hailed the decisions as victories for the rights that have been set aside in the administration’s drive to combat terrorism following the Sep. 11, 2001 attacks on the Pentagon and New York.


“Not one, but two federal courts have rebuked the president today for his belief that he should be able to lock people up without basic access to our justice and without congressional approval,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU).

“No president should be able to assume such unilateral authority over people’s freedoms, most crucially during times of threat to our national well-being,” he added in a Dec. 18 statement.

New York-based Human Rights Watch (HRW) also hailed the decisions–by the Second and Ninth Circuit Courts of Appeal–as a major vindication for basic liberties.

“Both (decisions) attacked the Bush administration’s view that a war metaphor can justify restrictions on basic criminal justice rights away from a traditional battlefield,” Kenneth Roth, HRW’s executive director, told the New York Times.

Justice Department officials, who said they believed the two 2-1 decisions were flawed, indicated they might seek review. Both cases could well wind up in the Supreme Court, according to legal analysts on both sides.

The first case involved an appeal by lawyers for Jose Padilla, a U.S. citizen arrested in Chicago in May, 2002 as a material witness in the government’s ongoing counter-terrorism investigation and subsequently designated by Bush, an “enemy combatant.”

He was subsequently transferred to a high-security naval brig in Charleston, South Carolina, where he has been refused permission to communicate with his family, a lawyer or any non-military personnel for 18 months.

The government contends Mr. Padilla met members of the al-Qaeda terrorist group in Afghanistan and Pakistan, where they developed a plan to build and detonate a radiological “dirty bomb” in the United States. It argues that he returned here to carry out the plan, although Mr. Padilla carried no arms or explosives when he was arrested at O’Hare Airport.

His lawyers claimed, among other things, that as a U.S. citizen who was arrested in this country, their client was entitled to full due-process rights guaranteed under the U.S. Constitution and could not be denied them by the executive branch acting on its own.

The second case was based on a petition for habeas corpus by the brother of a Libyan, Salim Gherebi, captured in Afghanistan two years ago and held along with more than 600 other so-called “enemy combatants” at the U.S. naval base at Guantanamo Bay, Cuba.

His lawyer argued that, even though his client was being held outside U.S. territory, Washington was obliged to provide him with certain basic protections under U.S. law, including the right to contest his detention in a U.S. court.

In a separate case earlier this year, the Circuit Court of Appeals for the District of Columbia upheld the administration’s position that “enemy combatants” held at Guantanamo Bay were not entitled to a court review of their detention, but that ruling is not binding on the Ninth Circuit, which is based in San Francisco.

Both cases tested the authority of the executive branch to detain individuals it deemed to be “enemy combatants” without explicit authorization from Congress or without providing them recourse to the U.S. court system.

In both cases, the courts ruled against the administration’s position. In the first, the Second Circuit Court of Appeals in New York ruled explicitly that the president lacks the power to authorize the unilateral detention of a U.S. citizen.

“The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States, away from the zone of combat, as enemy combatants, the majority ruled.

“Moreover,” the two judges went on, “a 1971 law designed to prevent any repetition of the notorious internment of Japanese-Americans during World War II expressly forbids federal detention of any U.S. citizen in the United States without congressional authorization.”

It ordered the government to release Mr. Padilla from military custody within 30 days, although it noted that he could continue to be held in civil custody by, for example, charging him with a crime in civilian court or seeking his detention on some other basis.

While White House spokesman called the court’s ruling “troubling and flawed” and indicated the government might seek a stay of the release order, rights groups hailed the judgment as a breakthrough.

“After the internment of Japanese-American citizens during World War II, we learned our lesson as a nation,” said Deborah Pearlstein, an attorney at the Lawyers Committee for Human Rights (LCHR) in New York.

“Congress passed a law saying that ‘no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.’ The court’s decision today makes clear that Congress means what it said, and the president is not above the law. This decision is a victory for the constitution.”

The ruling in the Gherebi case was more sweeping, with the two-judge majority arguing that indefinite detention by the executive branch, without charges, defied basic principles of U.S. jurisprudence.

“Even in times of national emergency–indeed, particularly in such times–it is the obligation of the judicial branch to ensure the preservation of our constitutional values and to prevent the executive branch from running roughshod over the rights of citizens and aliens alike,” Judge Stephen Reinhardt wrote for the majority.

The Ninth Circuit’s ruling ran directly counter to that of the D.C. Circuit. The Supreme Court last month agreed to hear an appeal of the D.C. Court’s decision, although oral arguments before the court are not likely to take place until late February at the earliest.

Lawyers said the Supreme Court, whose ruling will be binding on all federal courts, might now combine the two cases.