Home > Courts Rebuke Bush’s ’Lock ’em up’ Policy
Rights, Liberties Groups Hail Court Defeats for Bush
Anti-Terror Measures
Jim Lobe, OneWorld US
WASHINGTON, D.C., Dec 19 (OneWorld) — U.S. civil
liberties and human rights groups Thursday hailed the
one-two punch delivered by two federal appeals courts
against the Bush administration’s refusal to recognize
basic due-process rights of alleged U.S. and foreign
detainees held as "enemy combatants" in Washington’s
"war on terrorism."
"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
(news - web sites) (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.
New York-based Human Rights Watch (HRW) also hailed the
two decisions—by the Second and Ninth Circuit Courts of
Appeal—as an important 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 (news - web sites) officials, who
said they believed the two 2-1 decisions were flawed,
indicated they may seek further review. The 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 as an "enemy combatant." Transferred
to a high-security naval brig in Charleston, South
Carolina, Padilla has been refused permission to
communicate with his family, with a lawyer, or any non-
military personnel for 18 months.
The government contends that Padilla met with members of
al Qaeda in Afghanistan (news - web sites) and Pakistan
where he developed a plan with them to build and
detonate a radiological "dirty bomb" in the U.S. and had
returned there to carry out the plan, although he
carried no arms or explosives when he was arrested at
O’Hare Airport.
Padilla’s 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 contended 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 thus tested the authority of the executive
branch to detain individuals it deemed to be "enemy
combatants" without explicit authorization from Congress
or 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 that the president lacked 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 Padilla from military custody
within 30 days, although it noted that Padilla 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 may
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."
Amnesty International USA director William Schulz said
he, too, "welcomed the decision" but voiced concern that
"it does not seem to have been made in recognition of
basic human rights principles or constitutionally
guaranteed protections. Schulz noted that, while it
denied the executive branch the ability to detain
individuals without access to a lawyer, "it also laid
the groundwork for future detentions ...providing he has
permission from Congress."
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.
"We simply cannot accept the government’s position that
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," he argued.
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 all
federal courts, may now combine the two cases.
In another setback to the administration earlier this
month, the Ninth Circuit, which is widely considered the
most liberal of the federal appeals courts, declared
unconstitutional significant parts of an anti-terrorist
criminal statute that has been used as a key tool in a
number of recent criminal prosecutions in the war on
terrorism.
The administration has argued that a 1996 anti-terrorism
statute, which was broadened by the 2001 USA Patriot
Act, makes it a crime to provide material support to
terrorist organizations without regard to whether the
donor knows that the organization has been designated a
terrorist group. In addition to financial contributions,
"material support" was defined in the Patriot Act as
including the provision of "personnel" or "training."
The Court held that the prohibitions on "personnel" and
"training" were too vague and that the government’s
insistence that donors who were not aware of the
organization’s terrorist status or activities could be
prosecuted under the law risked punishing "moral
innocents" in violation of due process. The Justice
Department has indicated it will appeal the decision.
_