SAN FRANCISCO Dec. 18 — 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.
One 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.
In 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.
In 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.
“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,” Circuit Judge Stephen Reinhardt wrote in ruling in favor of a Libyan captured in Afghanistan and held in Cuba.
The two rulings highlighted the tensions between national security and civil rights since Sept. 11.
An 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.
The 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 operations.
But 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.
Padilla, 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 coordinator.
In 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.
“As 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.
“But 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.”
In 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 States citizens.”
Chris 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,” he said.
The White House said the ruling was inconsistent with the president’s constitutional authority as well as with other court rulings.
“The 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.”
Padilla’s 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.
Thursday’s 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.
The 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.
But 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.”
The 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 system.
Reinhardt, 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.
Meanwhile, 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.
Both 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.
Padilla is accused of plotting to detonate a “dirty bomb,” which uses conventional explosives to disperse radioactive materials.
Besides 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.