In another setback to the Bush administration's handling of the war on terror, a U.S. District Court judge ruled yesterday that military tribunals set up for prisoners at the Guantanamo Bay military base are unconstitutional.
The ruling is a sweeping indictment of the special tribunals created by the government to determine whether the prisoners are "enemy combatants," declaring that the detainees are entitled to challenge the basis for their detention.
"Although this nation must take strong action under the leadership of the commander-in-chief to protect itself against enormous and unprecedented threats, that necessity does not negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years," wrote Judge Joyce Hens Green.
More than 540 suspects are being held at Guantanamo, a U.S. base located in Cuba, after they were captured in Afghanistan and elsewhere in the world after the Sept. 11, 2001, terrorist attacks in the United States and the subsequent overthrow of the Taliban regime in Afghanistan.
The U.S. government has determined that the detainees are "enemy combatants" who can be held indefinitely and who have no constitutional rights.
That contention was first challenged successfully last year when the Supreme Court ruled that the detainees are legally entitled to challenge their incarceration. The special military tribunals were set up shortly afterward to determine whether the detainees could still be held.
In yesterday's case, Judge Green ruled that the 55 detainees involved had valid claims under the Fifth Amendment of the U.S. Constitution, which determines that nobody can be "deprived of life, liberty or property without due process of law."
"We're thrilled with the ruling," said Rachel Meerepol, a lawyer with the Center for Constitutional Rights, which represents the prisoners.
"It signals that the judiciary is taking its needed role in ensuring that this country abides by the promises of the Constitution, and no individual will be detained without an opportunity to challenge their detention in the courts."
The Bush administration said it will appeal the ruling, particularly in light of a separate ruling in a similar case two weeks ago that favoured the government view.
"We respectfully disagree with the decision," White House spokesman Scott McClellan said.
It's expected that the case will make its way to the Supreme Court.
Judge Green determined that some of the detainees had valid claims under the Geneva Conventions and that officials had unfairly withheld from detainees access to evidence used against them.
Because the tribunals did not allow the prisoners a full legal defence, they had no lawyers to question that classified evidence.
Judge Green cited the case of Mustafa Ait Idr, who was accused of associating "with a known al-Qaeda operative" when he lived in Bosnia.
Faced with the allegation, Mr. Idr asked the tribunal the name of the alleged al-Qaeda member so he could identify him, but he was told this information was classified.
"These are accusations that I can't even answer," the detainee told the tribunal in exasperation.
"You tell me I am from al-Qaeda, but I am not an al-Qaeda. I don't have any proof to give you except to ask you to catch [al-Qaeda leader Osama]bin Laden and ask him if I am part of al-Qaeda."
The judge said that the exchange might have been considered humorous if the consequences of the detainee's designation as an enemy combatant had not been so "terribly serious."
The judge was also sharply critical of the government's approach to the length of prison time for enemy combatants.
She noted that the government asserts the right to keep these prisoners until the war on terror has concluded or until the President decides that any individual no longer poses a threat to U.S. national security.
"The government, however, has been unable to inform the court how long it believes the war on terrorism will last," adding that it has been conceded that the war could last for "several generations," meaning that some of the prisoners could, in effect, be serving life terms.