Sat, Dec 20, 2003 - Page 7 News List

Courts order legal access to prisoners

DOUBLE BLOW The White House will appeal court rulings that terror suspects are entitled to lawyers and to access to civilian judicial processes


In twin setbacks for the Bush administration's war on terror, federal appeals courts on opposite coasts ruled that the US military cannot indefinitely hold prisoners without access to lawyers or US courts.

One ruling on Thursday favored the 660 "enemy combatants" being held at the US 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 to be an enemy combatant.

In Padilla's case, the New York-based 2nd US Circuit Court of Appeals ordered Padilla, a 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 US Circuit Court of Appeals ruled that prisoners held at the Guantanamo Bay Naval Base should have access to lawyers and the US 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 tensions between national security and civil rights since the terrorist attacks on Sept. 11, 2001.

An order by President George W. Bush in November 2001 allows captives to be detained as "enemy combatants" if they are members of al-Qaeda, engage in or aid terrorism, or harbor 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 US authorities are satisfied they have disclosed everything they know about terrorist operations.

But the New York court ruled 2-1 that Padilla's detention was not authorized by Congress and that the Bush administration could not designate him as an enemy combatant without such approval.

Michael Greenberger, a University of Maryland law professor and former Clinton administration Justice Department official, said the government "is being painted into a corner that is not very favorable. How bad of a corner will be determined by the US Supreme Court."

Padilla, a convert to Islam, was arrested in May last year at Chicago's O'Hare Airport as he returned from Pakistan. Within days, he was moved to the Navy brig in Charleston, South Carolina. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaeda'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 could 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-Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," Circuit Judge Rosemary Pooler wrote.

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