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Judge: Gitmo detainees can challenge detentions

Decision conflicts with another court ruling

From Bill Mears and Bob Franken

• Guantanamo marks three years
Supreme Court
Guantanamo Bay Naval Base (Cuba)
Justice and Rights

WASHINGTON (CNN) -- A federal judge ruled Monday that non-U.S. fighters in American military custody at the naval base in Guantanamo Bay, Cuba, can go to U.S. courts and protest their detention.

The decision conflicts with a ruling two weeks ago by a judge in the same federal court, putting at legal odds a key component of the Bush administration's incarceration and prosecution of terror suspects.

The Supreme Court ruled last year that detainees at the U.S. naval base in Guantanamo Bay have a right to challenge their imprisonment but left it to lower courts to handle individual appeals.

In Monday's ruling, Judge Joyce Hens Green of the U.S. District Court for the District of Columbia concluded at least some of the detainees have the right to challenge their status as "enemy combatants," and she criticized the administration for "failing to comport with the requirements of due process" in many of the cases.

"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats," Green wrote, "that necessity cannot negate the existence of the most basic and fundamental threats for which the people of this country have fought and died for well over 200 years."

Green heard appeals from more than 50 Guantanamo prisoners.

She also wrote, "It would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected 'enemy combatants' at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees.

"That, however, is not the relevant legal test. By definition, constitutional limitations often, if not always, burden the abilities of government officials to serve their constituencies."

The Justice Department issued a statement saying it believes the judge who ruled in its favor two weeks ago "did so correctly, and properly dismissed the petitions."

It noted that among other things, the earlier ruling determined that "there is no basis in the Constitution, or in history, for according aliens captured by the military outside the United States and classified as enemy combatants 'due process' rights under the Constitution, based on the mere fact that they are confined -- for operational and security reasons -- on foreign property that has been leased by the United States."

The Department of Defense also disputed the latest ruling.

"In general, the detention of enemy combatants is not criminal in nature, but to prevent them from continuing to fight against the United States in the war on terrorism," Lt. Cmdr. Flex Plexico, a Pentagon press officer, said in a written statement.

"The Department of Defense continues to believe that the combatant status review tribunals provided an appropriate venue for detainees to meaningfully challenge their enemy combatant designation.

"This is an unprecedented level of process being provided to our enemies in a time of war."

Groups representing the detainees applauded the ruling.

Michael Ratner, president of the Center for Constitutional Rights, said the judge "found that it was illegal for the president to unilaterally determine that an entire group of the Guantanamo prisoners were not POWs protected by the Geneva Conventions.

"This ruling has the potential to bring the U.S. back into the fold of nations under law. It is about time."

Ratner's group provided legal assistance for some of the Guantanamo detainees before Green. They also successfully won the Supreme Court case last year that established certain rights of detainees.

In a January 19 ruling, Judge Richard Leon took an opposite view from Green, concluding seven Guantanamo detainees could continue to be detained.

Leon, a Bush appointee, said nothing in last year's Supreme Court ruling gives the detainees legal rights enjoyed by U.S. citizens.

"To the extent these nonresident detainees have rights," Leon wrote, "they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct toward these detainees."

Leon also said that while "the courts must have some role when individual liberty is at stake, any role must be limited when, as here, there is an ongoing armed conflict and the individuals challenging their detention are nonresident aliens."

President Carter named Green to the bench in 1979, and from 1988 to 1995, she was on the U.S. Foreign Intelligence Surveillance Court, which has judicial oversight over the government's espionage activities.

The issue of detainee rights is moving on several legal tracks that soon could find their way back to the Supreme Court.

In March, a federal appeals court in Washington will consider the appeal of Salim Ahmed Hamdan, Osama bin Laden's alleged driver.

Last November, a federal judge in Washington ordered military tribunal proceedings halted for Hamdan, saying the Yemeni native was entitled to a hearing on his claim of prisoner-of-war status.

The ruling threw into question the government's plans for military trials for detainees captured on the battlefield who have not been given POW status.

The Supreme Court has refused to intervene in the Hamdan case, but many legal experts predict the justices will review the issue, perhaps in the fall. (Full story)

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