Righting wrongs for Guantanamo detainees

A federal judge rules that the war on terror "cannot 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."

By Suzanne Goldenberg

Published February 1, 2005 1:26PM (EST)

The Bush administration suffered a legal setback over its conduct of the war on terror Monday when a federal judge ruled that the special military tribunals at Guantánamo Bay were unlawful. The judgment was seen as a victory for the 540 detainees in Guantánamo, and for civil rights organizations that have campaigned for three years for inmates to have the right to challenge their detentions in court.

"This means that these folks are actually going to get a hearing," said Barbara Olshansky, of the Center for Constitutional Rights. The judge "is saying that the rule of law in this country cannot be disregarded by executive fiat -- despite what this administration might want."

The judgment was highly critical of the Pentagon's military tribunals, set up in June 2004 to decide whether to continue holding the inmates at Guantánamo. Judge Joyce Hens Green ruled that prisoners were entitled to the protection of the U.S. Constitution and the Geneva Convention even during the war on terror.

"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," the judge wrote.

Some of the prisoners at Guantánamo have been in detention for more than three years, with no prospect of release, under suspicion of belonging to al-Qaida or the Taliban. The Bush administration has argued that it has the right to hold the inmates indefinitely as "enemy combatants" in the war on terror. However, human rights lawyers believe that Monday's verdict could make it more difficult for the administration to resist pressure to extend legal rights to the prisoners at Guantánamo.

After the Supreme Court ruled last June that inmates had the right to a legal hearing, the Pentagon established a system of military tribunals to review their continued detentions. But those tribunals -- which did not give the detainees the right to a lawyer -- have come in for severe criticism from human rights organizations. Judge Green added to that criticism Monday.

In her decision, she said the tribunals did not satisfy crucial demands for fairness. They failed to meet these demands on two counts -- by denying inmates the right to hear all of the evidence against them, and by allowing the introduction of testimony obtained under torture. "The procedures implemented by the government to confirm that the petitioners are 'enemy combatants' subject to indefinite detention violate the petitioners' rights to due process of law," she wrote.

But despite the strongly worded opinion from Judge Green, it remains highly unlikely that any of the Guantánamo inmates will have their day in court anytime soon. Earlier this month, another judge in the D.C. District Court, Judge Richard Leon, dismissed a similar lawsuit from a second group of Guantánamo detainees.

The conflicting verdicts, and the Pentagon's resistance to full-scale legal reviews of the Guantánamo detentions, make it likely that both cases will end up in the Supreme Court.

Suzanne Goldenberg

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