Federal Appeals Court Rules Guantanamo Detainees Should Have Access To Civilian Courts

Court admonishes terrorism detainee practices
BY JAN CRAWFORD GREENBURG
Chicago Tribune

WASHINGTON - (KRT) - Rebuking the Bush administration for the "grave and startling proposition" that it could indefinitely detain foreigners arrested during the war in Afghanistan, a California-based federal appeals court ruled Thursday that prisoners held at a U.S. military base in Cuba may turn to the American court system to challenge their detention.

The 2-1 decision, written by outspoken liberal appellate Judge Stephen Reinhardt, took the administration to task for its assertion that the detainees at Guantanamo Bay may not challenge their detention in U.S. courts. That view, the court said, is "inconsistent with fundamental tenets of American jurisprudence" and raises "most serious concerns" under international law.

The decision, which is expected to be put on hold while the Supreme Court decides the same issue in another case, came hours after a New York-based federal appeals court said President Bush lacked authority to designate American citizens arrested in the United States as "enemy combatants" and detain them indefinitely.

Taken together, the rulings strongly admonish the White House for going too far with its anti-terror policies. Civil liberties groups said the two decisions reflected a growing skepticism in the courts of the administration's approach.

"Both (courts) are saying the government is very much overreaching its authority under the Constitution," said Jeffrey Fogel, legal director of the Center for Constitutional Rights, which is representing detainees in the Supreme Court case. "Maybe this signals that courts are prepared to give less deference to the government's assertion of national security or the war against terrorism as justifying whatever they want."

Steven Shapiro, legal director of the American Civil Liberties Union, said the decisions provide "a fundamental affirmation of the basic American commitment to checks and balances on executive branch power."

"The Bush administration is mistaken if it believes the proper way to fight the war on terrorism is to ignore the courts and the Congress," Shapiro said.

But John Yoo, a former Bush Justice Department official who helped craft the anti-terror policies and is now a law professor at the University of California, Berkeley, said the approach taken by the two courts would undermine the nation's efforts in fighting terrorism.

The decisions, Yoo said, were a "body blow to the administration's whole theory about how to wage war on terrorism." He said the two courts had failed to grasp the differences betweenterrorists wanting to destroy the U.S. and typical criminal defendants.

"Both of these decisions are trying to force the war on terror into the normal criminal justice system, the normal court system," Yoo said. "But the administration's whole point is that this is war, and we're going to use military methods and tactics and intelligence methods against this enemy."

Despite the strong language in both cases, their ultimate legal impact remains in doubt, because the Supreme Court likely will have the last word on both. In the enemy combatant case, Yoo said the appeals court ruling was so extreme and damaging to the administration that it likely would take the case directly to the Supreme Court, instead of asking the entire U.S. Court of Appeals for the 2nd Circuit to review it.

In the case involving the Guantanamo prisoners, the Supreme Court already has announced it would decide whether U.S. courts could consider the detainees' legal challenges. The court will review a decision by a D.C.-based federal appeals court that the 660 or so foreign nationals could not have access to American courts.

In that case, the justices last month agreed to hear a legal challenge on behalf of 16 foreign detainees who were arrested during the war in Afghanistan. Lawyers for the men contend that U.S. courts should decide whether the government can hold them indefinitely, without informing them of charges against them and without permitting them to consult lawyers, friends or family members.

The U.S. Court of Appeals for the D.C. Circuit threw out their claims earlier this year, unanimously ruling that the U.S. courts lack jurisdiction to resolve whether their confinements are legal because the Guantanamo base is outside the United States.

The U.S. Court of Appeals for the 9th Circuit reached the opposite result Thursday, concluding that American courts did have jurisdiction to hear the detainees' claims, in a case involving a Libyan man. Senior U.S. District Judge Milton Shadur of Chicago was on the panel and joined Reinhardt's opinion.

Despite its strong language, it is not clear how much legal impact the 9th Circuit's decision is likely to have. A dissenting judge insisted that the court should not have issued a decision in the case, since the Supreme Court already had agreed to resolve the issue.

"In the end, this decision won't matter, in the sense that the Supreme Court will do its own independent analysis of the issue and come to its own conclusion, regardless of what other courts have done," said Jim Schroeder, a partner at Chicago-based Mayer, Brown, Rowe and Maw. Schroeder wrote a Supreme Court brief on behalf of retired military officers opposed to the detention policy.

But Reinhardt, considered by many to be the most liberal of the judges on the liberal 9th Circuit, said it was important for the justices to have the appellate panel's views.

In its decision, the appeals court flatly rejected the administration's arguments that, in the interest of national security, the government could hold the men indefinitely, without informing them of charges against them or without allowing them to consult lawyers.

"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," Reinhardt wrote.

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