Judge rules detainees have right to lawyers
WASHINGTON -- A federal judge ruled yesterday that Guantanamo Bay detainees must be allowed to challenge their imprisonment in court with a defense lawyer, delivering a major blow to the Bush administration's bid to hold suspected fighters in the war on terrorism without judicial oversight.
The district court judge rejected a system of internal administrative hearings established last summer by the Pentagon to review the cases of the 558 detainees being held indefinitely at the US Navy base in Cuba, maintaining that detainees who claim they are innocent are entitled to greater protections under the US Constitution and the Geneva Conventions.
''Although this nation unquestionably must take strong action under the leadership of the Commander in Chief to protect itself against enormous and unprecedented threats, 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 two hundred years," wrote Judge Joyce Hens Green.
The decision was the third legal setback for the Bush administration's wartime powers in a federal district court since last June, when the Supreme Court issued landmark rulings granting greater rights to ''enemy combatants" held at Guantanamo Bay.
Most of the prisoners at the detention and interrogation camp were captured in Afghanistan and some have been held for as long as three years.
The Bush administration maintains that the Geneva Conventions, which govern the treatment of prisoners, do not apply to the Afghanistan war because Al Qaeda and the Taliban broke the laws of war. It has argued that no civilian court could interfere with its treatment of Guantanamo detainees.
But the Supreme Court disagreed last June, granting federal courts jurisdiction to hear detainees' cases. Lawyers for detainees and for the Bush administration have clashed over how claims of innocence by Guantanamo detainees will be reviewed, culminating in yesterday's decision by Green, who was appointed in 1979 by President Carter.
The Pentagon established a system of administrative hearings last summer to review the status of each detainee and determine whether he is being properly held as an enemy combatant. The internal reviews do not afford detainees a defense attorney, the right to see and rebut any evidence that is considered classified, or the right to appeal the decision.
The Bush administration contended that the reviews were sufficient to meet the requirements of the Supreme Court. But scores of detainees sued, arguing that their individual cases should be heard in court.
Yesterday, Green sided with the detainees, holding in a 75-page opinion that the system set up by the Pentagon violated the rights of Guantanamo prisoners and failed to live up to the Supreme Court's mandate. Detainees have a Fifth Amendment right to greater ''due process" before they can be stripped of the Geneva Conventions protections, she concluded.
''Of course, 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. ''That, however, is not the relevant legal test. By definition, constitutional limitations often . . . burden the abilities of government officials to serve their constituencies."
Green's ruling affects the cases of some 60 detainees who have filed suit since last summer. However, the decision is complicated because a different federal judge -- Richard J. Leon, who was appointed by President Bush in 2002 -- issued an opinion coming to the opposite conclusion for a much smaller group of detainees on Jan. 19.
The complexity arose because detainees who filed lawsuits after the Supreme Court decision were initially assigned to eight judges. The court consolidated all those claims before Green, but allowed any other judge to take back his or her cases. Only Leon chose to take back his cases. He had seven detainees before him.
In his own 38-page decision handed down two weeks ago, Leon wrote that Bush, as commander in chief, had the authority to detain noncitizens at Guantanamo as ''enemy combatants" and to interpret the Geneva Conventions without further judicial review.
''The petitioners are asking this court to do something no federal court has done before: evaluate the legality of the [commander in chief's] capture and detention of nonresident aliens, outside the United States, during a time of armed conflict," Leon wrote.
The Bush administration made essentially the same claim before the Supreme Court last year but was rejected. The Justice Department released a statement yesterday saying the administration believes Leon got it right.
Green's order ''conflicts with a ruling by a judge of the same court two weeks ago dismissing the same claims made by other Guantanamo detainees," the statement said. ''We believe the first district court to resolve the claims of enemy combatants detained at Guantanamo did so correctly, and properly dismissed the petitions."
Both sides said they expected all the cases to eventually reach the Supreme Court on appeal.
Green's opinion drew immediate fire from conservative legal analysts. David Rivkin Jr., a former associate White House counsel in the George H. W. Bush administration, called it ''utterly wrong" and predicted it would be overturned. Rivkin said President Bush's views merit greater deference in wartime and that Geneva Conventions review hearings have never before required defense lawyers.
''What she's suggesting would transform a front-end common-sense determination by the military as to whether or not you qualify for prisoner of war status into a full-fledged criminal trial," Rivkin said. ''That is insane."
But Barbara Olshansky, deputy legal director of the Center for Constitutional Rights, said the issue concerns only Guantanamo prisoners, not wartime prisoners in general. The treatment of these 558 men, she said, goes to the heart of American values.
''These people have been held here for three years with no charges and no process and no limitation on how they're treated, and that can't possibly be who we are," she said.
Yesterday's decision follows several other recent cases about counterterrorism powers that have gone against the Bush administration.
Yale Law School dean Harold Hongju Koh, a former assistant secretary of state for human rights in the Clinton administration, said that, three years after the Sept. 11 attacks, the judicial branch is reasserting its authority.
''The courts are clearly pushing back," Koh said. ''I think that independent judges don't like the idea that individuals don't have rights and that judges have no capacity to determine those rights." 