Courts: Padilla, other prisoners have rights

WASHINGTON, Dec. 18 (UPI) -- A U.S. Court of Appeals in California issued a blistering opinion Thursday, assailing the Pentagon's detention of prisoners at Guantanamo Bay Naval Base without giving them any of the constitutional rights normally afforded American prisoners.

Also Thursday, a different U.S. court of appeals said the Pentagon must release Jose Padilla, the so-called dirty bomber, from military custody within 30 days. The court held that the executive branch does not have the constitutional or statutory authority to indefinitely detain U.S. citizens seized on American soil.

Civilian authorities arrested Padilla at Chicago O'Hare Airport in May 2002. He was held briefly in New York as a material witness in the government's ongoing counter terrorism investigation. In June 2002, the president designated him an "enemy combatant," and Padilla was transferred to a military brig in South Carolina. He has not yet been allowed access to his attorneys.

New York's 2nd District Court of Appeals said Padilla, as an American citizen seized on U.S. territory, cannot be held as an enemy combatant with none of the rights accorded by the constitution.

Padilla can be held in a civilian jail as a material witness or charges may be filed against him, the court said.

"Under any scenario, Padilla will be entitled to the constitutional protections extended to other citizens," it said.

Across the country, California's 9th Circuit Court of Appeals strongly condemned the legal void in which more than 600 men captured in Afghanistan and elsewhere he been held.

"We simply cannot accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign included, on territory under the sole jurisdiction of the United States without permitting such prisoners recourse of any kind to any judicial forum or even access to counsel, regardless of the length or manner of their confinement," the court wrote in an opinion issued Thursday.

Calling it "counter-intuitive" and "undemocratic," the court said the situation "is inconsistent with fundamental tenets of American jurisprudence" and raises "the gravest concerns under both American and international law."

The decision was rendered on Gherebi v. Bush, a case filed by the brother of a prisoner at Guantanamo Bay, Feren Gherebi. A district court in central California had "reluctantly" passed on the decision claiming because Guantanamo Bay is in Cuba, it does not have standing to make a decision.

The 9th Circuit rejected that reasoning, asserting the military has unquestioned jurisdictional control over the naval base, and because of the large military presence in California, the courts there have standing to review cases originating there.

"The issue before us is ... whether the courts of the United States are entirely closed to detainees held at Guantanamo indefinitely," the court said.

It granted Gherebi the right to be heard in U.S. courts, and the right to bring a lawsuit in California.

The government based its argument on the assertion that the lack of soveregnity in Cuba prevented the courts from being able to exercise their right to review actions by the executive branch. The government's lawyers argued that if it were torturing or summarily executing the prisoners -- clear violations of the U.S. constitution -- because it happened outside the United States, the court would still not have any say.

The court called this "a position so extreme it raises the gravest concerns under both American and international law."

"The government is following an unprecedented alternative: Under the government theory it is free to imprison Gherebi indefinitely, along with hundreds of other foreign citizens, friendly nations among them, and to do to Gherebi and these detainees as it will when it pleases without any compliance with any rule of law of any kind, without permitting him to consult counsel and without acknowledging a judicial forum in which its actions may be challenged," the court stated.

Eugen Fidell, an expert in military law, said the 9th Circuit decision was a foregone conclusion.

"These issues are a blend of real estate and the identity of the litigants, or the identity of the person whose liberty is at issue," Fidell said, "the two issues that entwine around one another. I think the real estate issue, as these things go, was a no-brainer, to be honest."

Fidell, president of the National Institute for Military Justice, said the government's argument about sovereignty was certain to be rejected on its face. The remaining issue was the nationality of the prisoners and whether they should be afforded the same protections as American citizens.

That decision, he said, was likely influenced by the duration of the detentions -- for some almost two years with no announced end in sight.

"The duration of the detentions here has caused an erosion of tolerance," Fidell said. "You're talking about a lot of people who may not have much to recommend them; it certainly does implicate the government reputation."

"Are there times when the executive branch will enjoy complete freedom (from judicial oversight)? No doubt about it, in an overseas battlefield activity, where they are all but entirely immune to review," Fidell continued.

"To analogize Guantanamo Bay -- a place where you certainly could leave your car unlocked at night -- to an active battleground for the purposes of immunizing the government from any judicial scrutiny is really intolerable. And judges don't like that kind of argument."