Washington – In a victory for the White House, a U.S. appeals court Tuesday threw out the legal claims brought on behalf of the hundreds of prisoners held at Guantanamo Bay and ruled that they do not have a right to plead their innocence in an American court.
In a 2-1 decision, the judges said the Constitution does not extend the right of “habeas corpus” to noncitizens who are held outside the sovereign territory of this country.
“Cuba – not the United States – has sovereignty over Guantanamo Bay,” wrote Judge Raymond Randolph.
The ruling sets the stage for a historic showdown in the Supreme Court over whether the White House and Congress can deny habeas corpus – the right to go before a judge and ask to be released – to some persons held for years without charges.
Tuesday’s decision by the U.S. Court of Appeals in Washington vindicates, at least for now, a tactical move made by White House lawyers shortly after the United States invaded Afghanistan in 2002. They wanted the military to have power to indefinitely hold and intensively interrogate foreign fighters and suspected terrorists without interference from federal courts. They chose the U.S. Naval Base at Guantanamo Bay, Cuba, because it was near but still outside the actual territory of the U.S.
For the nearly five years since then, civil libertarians and advocates for the detainees have been trying to win a hearing before an independent judge. There they could argue that at least some of the men were not terrorists and were being held wrongly.
The Bush administration has fought to prevent these men from having their claims heard in court. Meanwhile, throughout much of the world, Guantanamo Bay has come to symbolize what critics say are harsh tactics and contempt for international opinion.
So far, no one has been tried for a terrorist offense. And although former Defense Secretary Donald Rumsfeld once referred to them as the “worst of the worst,” hundreds of detainees have been released and sent back to their home countries.
Late last year, the Republican-controlled Congress passed the Military Commissions Act, which made clear that “enemy combatants” held outside the United States may not file claims in U.S. courts. Tuesday’s ruling upheld that law.
Lawyers for the detainees condemned the ruling.
“This decision empowers the president to do whatever he wishes to prisoners without any legal limitation so long as he does it off-shore. (It) encourages such notorious practices as extraordinary rendition and contempt for international human rights law,” said Shayana Kadidal, an attorney for the Center for Constitutional Rights in New York.
Under pressure from lawsuits that reached the high court in 2004, the Pentagon reluctantly agreed to give the detainees a “status review hearing” before military officers. But often, in these hearings, the detained men are not told about the evidence that resulted in their being held.
“We are pleased with the decision,” said Navy Cmdr. J.D. Gordon, a Pentagon spokesman. “We are continuing to work with Congress to bring unlawful enemy combatants to justice via the military commissions.”
Last year, Congress also set rules for the upcoming military trials. Currently, about 395 detainees are held at Guantanamo.
Pentagon officials say they expect about 80 to be put on trial. Another approximately 85 of the men are due to be released or transferred to another country.
That leaves about 230 detainees who remain in something of a legal limbo. They have no right to appeal the military’s decision to continue holding them. At the same time, military officials do not plan to put them on trial.
Lawyers for the detainees said they will take their case to the Supreme Court.
Three years ago, the high court dealt the administration a rebuke and opened the courthouse door to the detainees. In a 6-3 ruling in Rasul vs. Bush, the justices said the federal law on habeas corpus gave all persons a right to go to court.
But last year the Republican- controlled Congress closed the door again, with the Military Commissions Act. This year, now that Democrats are in control, several senators vowed they would amend the law to restore the traditional right to habeas corpus for all. But their efforts would face an almost certain veto by President Bush.
Sen. Lindsey Graham, R-S.C., who played a key role in drafting the Military Commission Act, applauded the ruling.
“The determination of enemy- combatant status belongs with the military,” he said. “Civilian judges are not trained to determine who presents a threat to our nation.”
Shortly after World War II, the Supreme Court ruled that German military prisoners who had been tried for war crimes and were being held near Berlin could not appeal their imprisonment by filing writs of habeas corpus in the U.S. But the justices have not ruled squarely on whether Congress can restrict habeas corpus for persons who are held for years by U.S. authorities without being charged with a crime.
The Constitution says the “privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” While this provision makes clear that Congress cannot lightly strip the right to go to court for persons who are held within the United States, it is not clear whether this right extends to foreign prisoners who are held by U.S. officials outside of the nation’s borders.
