Jim Lobe:

A US 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 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. 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 US Supreme Court ruled last June that detainees held as “enemy combatants” by the US 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 US Court of Appeals for the District of Columbia Circuit or, possibly directly to the Supreme Court. 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. She indicated

that the government’s definition of “enemy combatant” and its use against detainees, some of whom may be eligible for “prisoner-or-war” status under the Geneva Convention, was itself too vague and too broad.

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 US forces, who in turn assumed that they were tied to the Taliban or al Qaeda. 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”. — IPS