U.S. Appellate Court Rules Against Guantanamo Detainees

WASHINGTON —  An appellate court here ruled Tuesday that none of the detainees at the U.S. naval base at Cuba’s Guantanamo Bay has the right to meet with lawyers or seek due process in court because they are not Americans and are not housed within the borders of the United States.

In a separate ruling, a judge in New York ordered prosecutors to allow Brooklyn native Jose Padilla, who is accused of plotting with Al Qaeda to detonate a radioactive “dirty bomb,” to meet with his attorney and fashion a defense as the government continues to hold him in a South Carolina naval brig.

The rulings, coming 1 1/2 years after the Sept. 11 attacks, begin to firm up the federal courts’ views on the contentious issue of the rights of prisoners captured in the war on terror.

The Bush administration, which has been under sharp criticism for its handling of the detainees, scored an outright victory in the Guantanamo Bay case. And even though prosecutors lost this round in the Padilla case, they are expected to quickly appeal the ruling and repeat their position that they can hold Padilla indefinitely without charging him with a crime -- as they have done since his arrest in Chicago last spring.

For civil liberties groups, the two rulings made for a bittersweet day.

In the Guantanamo case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit -- ruled that 12 Kuwaiti detainees and four others who all say they are not guilty -- stressed that noncitizens do not enjoy the same rights as Americans to their day in court.

Additionally, the appellate court said, because the naval base is rented from the Cuban government, U.S. courts have no power over the 650 non-U.S. citizens there.

“The Constitution does not entitle the detainees to due process,” said the unanimous three-member panel. “They cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.”

A group of Washington lawyers, headed by Thomas B. Wilner, urged the appellate court late last year to let the 12 Kuwaitis meet with lawyers to form a defense to win their release from Guantanamo Bay.

The Kuwaitis have maintained that they were merely doing charity work and other service in and around Afghanistan while the United States was waging its war on terror there and were wrongly swept up by American troops.

“The court’s decision raises profound questions of policy that ought to be of concern to all Americans,” a deeply disappointed Wilner said, noting that U.S. citizens could find themselves in the same situation overseas, particularly if war comes with Iraq.

“We are all foreigners outside our borders,” Wilner said. “This decision endangers every United States citizen who travels abroad.... We jeopardize our own troops as they confront a war in Iraq, giving our enemies an excuse to ignore the protections of the Geneva Conventions.”

In Kuwait, families of the 12 expressed frustration and helplessness, unsure of where now to turn for help from a country -- the U.S. -- that was its battlefield ally in the Persian Gulf War.

“I am angry about this,” said Khaled Al Odah, a former Kuwaiti soldier whose son, Fawzi, he said was captured after he tried to help Afghan refugees.

“We have struggled for a long time now,” the father said in a telephone interview from Kuwait. “But it seems to me that the Bush administration is not listening to our voice, and we are trying very hard to reach somebody to understand what is happening.

“We also are trying very hard to get the U.S. to treat or try the people at Guantanamo individually, and not in general. There are a lot of innocent people there.”

Mansoor Kamel, the brother of detainee Abdullah Kamel, said in a separate phone interview that the families of all 12 men will now have to plan their next move, perhaps a final appeal to the Supreme Court.

“How can we prove our family members are innocent?” he said. “They’re being held by the American forces and we are trying to use American law to do something about this. Whom else should we go to? Who else can we talk to?

“We can’t talk to President Bush, can we?”

Kamel said his family’s last letter from Abdullah was a month ago. “It had the same stuff he’s been talking about all the time,” the brother said. “ ‘I’m doing fine. Don’t worry about me. Pray for me. Hopefully I will be back,’ and that’s it.”

The ruling also drew fire from civil rights groups.

The Lawyers Committee for Human Rights called upon the administration to “develop and state publicly” its criteria for holding people in Cuba, and to announce a clear “decision-making policy and criteria for returning detainees to their home countries.”

“Many of these people have been held for a year or more,” the committee said. “The U.S. government’s position that the detainees are enemy combatants, and that they may be held until the global war against terrorism is concluded, is untenable.”

Added Amnesty International spokesman Alistair Hodgett: “To hold people without charge and without access to legal counsel risks the creation of an American gulag.”

But the appellate panel, headed by Judge A. Raymond Randolph, found that the detainees have no constitutional protections because they are not Americans and are not on U.S. soil.

The judges said that under the 1903 lease for the naval base, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba.”

The judges added: “The text of the lease shows that Cuba -- not the United States -- has sovereignty over Guantanamo Bay.”

Randolph said questions about how long to hold the detainees and how to interrogate them should be “left to the exclusive discretion of the executive branch, and there they should remain.”

In the Padilla case, U.S. District Judge Michael B. Mukasey vented his frustration that the government had not allowed Padilla to meet with a lawyer, despite his earlier order that it do so. He said that forbidding legal representation would make a mockery of democracy.

“If Padilla does not receive the full panoply of protections afforded defendants in criminal cases, a dictatorship will be upon us; the tanks will have rolled,” the judge said.

Steven R. Shapiro, legal director for the ACLU, said that while he welcomed the ruling, “it is unfortunate that the government needs such a forceful reminder of its basic legal obligations.”

However, Justice Department spokeswoman Barbara Comstock said prosecutors are reviewing the ruling. “In times of war,” she said, “the president must have the authority to act when an individual associated with our nation’s enemies enters our country to endanger American lives.”