Grants Prisoners Access To Lawyers
Court Rules U.S. Military Can't Indefinitely Hold Prisoners Without
Access to Lawyers, Courts
Larry Neumeister, Associated Press, December 18, 2003
SAN FRANCISCO -- In twin setbacks for the Bush administration's
war on terror, federal appeals courts on opposite coasts ruled
Thursday that the U.S. military cannot indefinitely hold prisoners
without access to lawyers or the American courts.
ruling favored the 660 "enemy combatants" being held
at the U.S. naval base at Guantanamo Bay, Cuba. The other involved
Jose Padilla, an American who was seized in Chicago in an alleged
plot to detonate a radioactive "dirty bomb" and was
declared as an enemy combatant.
Padilla's case, the New York-based 2nd U.S. Circuit Court of Appeals
ordered the former gang member released from military custody
within 30 days and, if the government chooses, tried in civilian
courts. The White House said the government would appeal and seek
a stay of the decision.
the other case, the San Francisco-based 9th U.S. Circuit Court
of Appeals ruled that prisoners held at the Guantanamo Bay Naval
Base should have access to lawyers and the American court system.
It was the first such ruling by a federal appeals court anywhere
in the country.
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," Circuit Judge Stephen Reinhardt wrote in ruling in
favor of a Libyan captured in Afghanistan and held in Cuba.
two rulings highlighted the tensions between national security
and civil rights since Sept. 11.
order by President Bush in November 2001 allows captives to be
detained as "enemy combatants" if they are members of
al-Qaida, engaged in or aided terrorism, or harbored terrorists.
The designation may also be applied if it is "the interest
of the United States" to hold an individual during hostilities.
Justice Department this week said such a classification allows
detainees to be held without access to lawyers until U.S. authorities
are satisfied they have disclosed everything they know about terrorist
the New York court ruled 2-1 that Padilla's detention as an enemy
combatant was not authorized by Congress and that the Bush administration
could not designate him as an enemy combatant without such approval.
a convert to Islam, was arrested in May 2002 at Chicago's O'Hare
Airport as he returned from Pakistan. Within days, he was moved
to the Navy brig in Charleston, S.C. The government said he had
proposed the bomb plot to Abu Zubaydah, then al-Qaida's top terrorism
ordering his release from military custody, the court said the
government was free to transfer Padilla to civilian authorities
who can bring criminal charges. Padilla could also be held as
a material witness in connection with grand jury proceedings,
the court said.
this court sits only a short distance from where the World Trade
Center stood, we are as keenly aware as anyone of the threat al-Qaida
poses to our country and of the responsibilities the president
and law enforcement officials bear for protecting the nation,"
Circuit Judge Rosemary S. Pooler wrote.
presidential authority does not exist in a vacuum, and this case
involves not whether those responsibilities should be aggressively
pursued, but whether the president is obligated, in the circumstances
presented here, to share them with Congress."
a dissent, Circuit Judge Richard C. Wesley said that as commander
in chief, the president "has the inherent authority to thwart
acts of belligerency at home or abroad that would do harm to United
Dunn, an attorney with the New York Civil Liberties Union, called
the ruling historic. "It's a repudiation of the Bush administration's
attempt to close the federal courts to those accused of terrorism,"
White House said the ruling was inconsistent with the president's
constitutional authority as well as with other court rulings.
president's most solemn obligation is protecting the American
people," White House press secretary Scott McClellan said.
"We believe the 2nd Circuit ruling is troubling and flawed."
lawyer, Donna Newman, did not immediately return a call for comment.
Newman has battled in court to be able to meet with Padilla; she
has not done so since he was designated an enemy combatant the
month after his arrest.
2-1 decision out of San Francisco was the first federal appeals
court ruling to rebuke the Bush administration's position on the
Guantanamo detainees, who have been without charges, some for
nearly two years.
administration maintains that because the 660 men confined there
were picked up overseas on suspicion of terrorism and are being
held on foreign land, they may be detained indefinitely without
charges or trial.
Reinhardt ruled: "We cannot simply accept the government's
position that the executive branch possesses the unchecked authority
to imprison indefinitely any persons, foreign citizens included,
on territory under the sole jurisdiction and control of the United
States, without permitting such prisoners recourse of any kind
to any judicial forum, or even access to counsel, regardless of
the length or manner of their confinement."
Supreme Court last month agreed to decide whether the Guantanamo
detainees, who were captured in Afghanistan and Pakistan, should
have access to the courts. The justices agreed to hear that case
after the U.S. Court of Appeals for the District of Columbia ruled
that the prisoners had no right to access to the American legal
who signed the 9th Circuit opinion last year that declared the
Pledge of Allegiance unconstitutional when recited in public schools,
stayed enforcement of the Guantanamo decision pending the outcome
of the case already before the Supreme Court.
the Pentagon announced Thursday that it has appointed a military
defense lawyer for a terrorism suspect held at Guantanamo. Salim
Ahmed Hamdan of Yemen becomes the second Guantanamo prisoner to
be given a lawyer. Australian David Hicks got a lawyer earlier
this month and recently met with an Australian legal adviser.
Hamdan and Hicks are among six Guantanamo prisoners designated
by the president as candidates for trials by special military
tribunals. Neither Hamdan, Hicks nor the others detained in Cuba
have been charged.
is accused of plotting to detonate a "dirty bomb," which
uses conventional explosives to disperse radioactive materials.
Padilla, only two other known people who are being detained in
the United States have been designated as enemy combatants since
the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen
of Qatar accused of being an al-Qaida sleeper agent, and Esam
Hamdi, a Louisiana native captured during the fighting in Afghanistan.