Global Policy Forum

By Jim Lobe

A U.S. federal court judge has ruled that military tribunals initiated by the Pentagon to determine the status of terrorist suspects held at the naval base at Guantanamo Bay, Cuba, are unconstitutional because they do not satisfy minimal due-process requirements. The long-awaited decision by veteran judge Joyce Hens Green deals a new setback to the George W. Bush administration's claims of broad executive authority to conduct its global "war on terrorism" and will almost certainly be appealed to a higher court.

"We respectfully disagree with the decision," said White House spokesman Scott McClellan after the ruling was made public. He pointed to a Jan. 19 ruling by another federal judge, Richard Leon, that concluded that detainees held at Guantanamo had no legal way to challenge their detention in federal court.

The detainees' lawyers hailed the decision as a major victory that, in the words of one, "sent a hopeful message to the world that despite the administration's continued refusal to acknowledge the unlawfulness of its behavior, our democratic institutions are working hard to ensure justice is preserved".

If upheld, Green's decision would deal a mortal blow to the Pentagon courts, called Combatant Status Review Tribunals (CSRTs), which have been hearing the cases of some 550 detainees who remain at Guantanamo since late last summer. The tribunals were launched after the U.S. Supreme Court ruled last June that detainees held as "enemy combatants" by the U.S. have a right to challenge their status before an independent tribunal.

That ruling, however, did not explicitly order the administration to permit detainees to appeal directly to the federal courts. The Pentagon's subsequent rush to set up its own tribunals to review the status of the detainees appears to have been an effort to satisfy the court's opinion without surrendering jurisdiction.

Leon, a Bush appointee, essentially went along with the Pentagon's argument that the independent tribunal required by the Supreme Court did not necessarily have to be a federal court. Asked to rule on a habeas corpus petition brought by seven detainees, he dismissed the case, arguing that while they had the right to file such a petition, "no viable legal theory" existed to grant relief because courts lacked the power to review the executive's decision to detain "nonresident aliens, outside of the United States, during a time of armed conflict".

But Green, who was appointed to the bench by former President Jimmy Carter, clearly rejected that interpretation in her decision Monday, setting up what will probably be an expedited appeal to the U.S. Court of Appeals for the District of Columbia Circuit or, possibly directly to the Supreme Court. "It would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected 'enemy combatants' at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees," she wrote.

"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats," she went on, "that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

She found that the CSRTs failed to meet "constitutional due process requirements in several respects", most importantly, not making available to defendants evidence that the government believes should be secret. In many cases, according to the tribunals' own records, that evidence includes statements by other suspected terrorists. According to Green, that provision denies them "a fair opportunity to rebut" their classification as enemy combatants. She also noted that some of the statements used against detainees may have been obtained through physical or psychological abuse that would render it inadmissible in a court of law. She also suggested that "personal representatives" -- non-lawyers chosen by the tribunal to represent the detainees -- also fell short of constitutional requirements.

She indicated further that the government's definition of "enemy combatant" and its use against detainees, some of whom may be eligible for "prisoner-or-war" (POW) status under the Geneva Convention, was itself too vague and too broad. "Although many of these individuals may never have been close to an actual battlefield and may never have raised conventional arms against the United States or its allies, the military nonetheless has deemed them detainable as 'enemy combatants' based on conclusions that they have ties to the Al Qaeda network or other terrorist organizations," she found.

Indeed, a number of detainees captured in Afghanistan and released as long as three years later have complained that they were simply "rounded up" by militias who delivered them to U.S. forces, who in turn assumed that they were tied to the Taliban or al Qaeda.

During oral arguments, Green had asked a government attorney whether "a little old lady in Switzerland who writes a check to what she thinks is a charity that helps orphans in Afghanistan but (what) really is a front to finance al Qaeda activities" might be deemed an "enemy combatant". The attorney had replied affirmatively.

The judge also stressed the importance of providing full due-process guarantees to detainees, particularly when the administration asserted its right to hold "enemy combatants" until the war on terrorism is completed. "The government has conceded that the war could last several generations", she wrote, making it possible, if not likely, that 'enemy combatants' will be subject to terms of life imprisonment at Guantanamo Bay".

"This decision reaffirms that the Guantanamo detainees cannot be imprisoned outside the law, that they have a constitutional right to a fair hearing and that evidence resulting from torture and coercion cannot be used to continue their imprisonments," said Michael Ratner, president of the Center for Constitutional Rights (CCR), which represented the detainees.

"The judge also found that it was illegal for the President to unilaterally determine that an entire group of the Guantanamo prisoners were not POWs protected by the Geneva Conventions," he noted, adding, "This ruling has the potential to bring the U.S. back into the fold of nations under law. It's about time."