Courts Hold Bush's Anti-Terror Excesses In Check (Helen's First Senile Rant of the Year)

WASHINGTON -- Hail to the federal appellate courts. They may save the republic from the Bush administration's excesses in the war on terrorism.

We are beginning to see -- at last -- some judicial courage reflected in court rulings that restrain the president from placing suspects in limbo for months, without access to lawyers or family.

Those decisions may temper the actions of President George W. Bush and Attorney General John Ashcroft in their apparent desire to ignore U.S. law and the Geneva Accords dealing with the humane treatment of prisoners of war.

One measure of desperation of prisoners held indefinitely, having been given no reason for their confinement and without contact with courts or family, is that 32 of 600-plus prisoners being held by the U.S. military at Guantanamo Bay, Cuba, on suspicion of terrorism have attempted suicide.

The suspects from 40 different countries were captured in the Afghan war.

Their treatment has become a black mark on the reputation of the United States as a nation of laws, founded on respect for human dignity.

It is comparable to the shameful internment of 120,000 Japanese and Japanese-Americans during World War II.

We're still apologizing and paying off for that unhappy chapter in our history.

On Dec. 18, the U.S. Circuit Court of Appeals for the Second Circuit, based in New York, ruled that Bush lacked the legal authority to hold indefinitely a U.S. citizen arrested in the United States on suspicion of terrorism by simply declaring him an "enemy combatant."

On the same day, the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, ruled that the policy of holding non-citizens at the U.S. Navy base at Guantanamo Bay without access to legal protections was unconstitutional and in violation of international law.

At last, the courts are rising to the challenge of the White House grab for unlimited power.

The New York court told Bush-Ashcroft that American citizenship counts under the Constitution. The San Francisco court told the administration that it cannot deny non-Americans held in Guantanamo access to the U.S. court system.

"We simply cannot accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States," the Ninth Circuit court said.

"We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure," the court added.

The New York ruling dealt with the case of Jose Padilla, an American convert to Islam, who was arrested when he arrived back in the United States from Pakistan.

Ashcroft said in June 2002 that Padilla, a former gang member in Chicago, had planned to explode a "dirty bomb" in the United States and was taking his orders from al-Qaida.

Padilla has been held incommunicado for 18 months at a Navy brig in Charleston, S.C., with no contact with a lawyer or family.

The court said the president doesn't possess "inherent constitutional authority to detain American citizens seized within the United States, away from the zone of combat, as enemy combatants."

It gave the government 30 days to release Padilla or seek other means to hold him in civilian courts.

The two decisions add up to a serious setback for the administration's apparent policy of canceling basic criminal justice when it wants to.

"The Ninth Circuit decision (dealing with the detainees at Guantanamo) said that you can't create a legal black hole in territory controlled by the United States," Kenneth Roth, executive director of Human Rights Watch, told The New York Times on Dec. 19.

Chris Dunn, spokesman for the New York Civil Liberties Union, said the decision on the detainees is "a repudiation of the Bush administration's attempt to close the federal courts to those accused of terrorism."

Daniel L. Greenberg, president of the Legal Aid Society in New York, said "among the reasons that defendants are guaranteed fundamental fairness is to test whether the charges against them are true."

We need to have confidence that the right person has been seized and that the events charged had actually occurred, he added.

The administration's campaign to short-circuit due process has riled other nations. The Financial Times on Dec. 31 reported that Johan Steyn, one of Britain's law lord judges, has branded the detentions at Guantanamo "a monstrous failure of justice."

Steyn said the Guantanamo prison represented an attempt to put the prisoners "beyond the rule of law, beyond the protection of any courts and at the mercy of victors."

The U.S. Supreme Court will have the final say later this year on whether the administration has complied with the Constitution and whether government claims of national security outweigh individual civil liberties.

We hope the court's ruling will reflect traditional American values.

(Helen Thomas can be reached at the e-mail address hthomas@hearstdc.com).

Rank	Location	Receipts	Donors/Avg	Freepers/Avg	Monthlies
48	Germany	50.00	1	50.00	34	1.47

A Reply to Lord Steyn and incidently "Helen the Hag"

By Ambassador Kevin Edward Moley

There's a passage in Lewis Carroll's "Through the Looking-Glass" where Alice confronts the White Queen about believing impossible things. "There's no use trying," Alice says, "one can't believe impossible things." I was reminded of this when I read Lord Johan Steyn's recent commentary in the IHT (November 27, 2003, "A Monstrous Failure of Justice"). Lord Steyn appears to have topped the White Queen on believing impossible things. Here are eight from his essay.

"How prisoners at Guantánamo Bay have been treated we do not know." Yes we do. They have extraordinary health care, the same as U.S. troops get; their menus accommodate their cultural and religious preferences; they have exercise opportunities; they are provided liturgical necessities and daily opportunities for religious expression; they have the ability to send and receive mail. For those who have demonstrated good behavior, there are more extensive exercise facilities, communal quarters and other amenities. International observers from the Red Cross are given access to the detainees at Guantanamo and a number of foreign government representatives have visited their nationals as well.

The detainees at Guantánamo Bay Naval Base are "foot soldiers of the Taliban." The decision to send a detainee to Guantanamo is not taken so lightly. Of 10,000 fighters detained in Afghanistan over two years by Coalition forces, less than 700 have been sent to Guantanamo. Over 9000 of those detained in Afghanistan have been released. Those who are sent to Guantanamo are held because they are of significant intelligence value or they pose a continuing danger to Americans and people from many other countries around the world. Many detainees have made it unmistakably clear they will launch more attacks if let go.

"The procedural rules do not prohibit the use of force to coerce prisoners to confess." On the contrary, our obligations under applicable international law on humane treatment of detainees are clear and the Department of Defense expressly complies with them.

"By a blanket presidential decree, all the prisoners have been denied prisoner-of-war status." It wasn't by presidential decree that they were denied status as POWs under the Geneva Convention; it was by their failure to do the things lawful combatants are required to do, such as distinguishing themselves from the civilian population (to avoid endangering legitimate noncombatants), following the rules of war, and operating within a system of accountability. A key quid pro quo of the law of armed conflict is that those who fight by these fundamental rules get certain benefits of the law of war. Most important among these benefits for soldiers is POW status which includes the concept of combatant immunity -- the principle that lawful combatants won't be prosecuted for their legitimate acts of warfare even if detained as prisoners. It's an incentive system intended to reinforce the most fundamental of all humanitarian law principles -- the principle of distinction which says it's legitimate to attack military targets, unlawful to attack civilians. Indeed, giving POW status to unlawful combatants would undermine the Geneva Convention on Prisoners of War. Military organizations that ignore or flout these rules shouldn't expect to collect the law's benefits. (If they are led to believe otherwise, what incentive is there for other military forces to keep up the soldier's end of the bargain?) The Taliban and Al Qaeda fighters detained at Guantanamo were not entitled to POW status as a result of the choices they made as fighting organizations in waging war.

"The blanket presidential order deprives them all of any rights whatever." Not the case. While detained Taliban and Al Qaeda fighters are not entitled to POW status, we have nonetheless accorded them humane treatment. In fact, the law of armed conflict provides a set of fundamental guarantees to deal with the situation of persons who fall into enemy hands yet do not meet the criteria for POW status.

Guantánamo is a "black hole" where prisoners will be left "indefinitely." Not so. The U.S. is constantly and exhaustively reviewing the continued detention of each detainee. We are always looking at ways to expedite the detainee review process to make it more efficient. Detainees who we are confident won't return to the fight are released. Scores have left Guantanamo on this basis already. More are expected to be released soon. Although the law of armed conflict establishes the right to detain combatants, lawful or unlawful, for the duration of the conflict, the U.S. has no interest in keeping a Guantanamo detainee any longer than necessary, as borne out by the releases and transfers that already have occurred.

"None of the basic guarantees for a fair trial need be observed." Not true. Guarantees provided include presumption of innocence, proof beyond a reasonable doubt, right to counsel (including civilian counsel), right for the defense to see and contest the evidence, right to put on evidence in one's defense, right not to testify and have no adverse inferences drawn and right to an appeal. And the list of fair trial safeguards goes on.

"The purpose of holding the prisoners at Guantánamo Bay was and is to put them beyond the rule of law, beyond the protection of any courts . . ." The purpose of the detention at Guantanamo Bay is to defend ourselves, to keep Al Qaeda and Taliban fighters from attacking us. The taking of prisoners in war has long been justified on this ground. And this is, after all, a war; a non-conventional war, yes, but still a war. Al Qaeda killed thousands of people on 9/11 and has continued to attack civilians around the globe. It has vowed to strike America and Americans again. Fighting continues as well in Afghanistan against Taliban forces. Our right to act in self-defense in this struggle is quite clear and well recognized, including by the UN Security Council and by NATO when it invoked Article 5.

While Lord Steyn, I believe, is wrong about many things concerning Guantanamo, he is right in his description of the Guantanamo issue as it is presented to the Supreme Court. The only issue on which the Court has granted certiorari to review is whether the lower courts were correct in saying they had no jurisdiction over habeas petitions from Guantanamo. That question will be heard in the spring. In the meantime, we'll keep trying to separate Guantanamo facts from fiction, despite how easy it is for some to believe impossible things.

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Courts Hold Bush's Anti-Terror Excesses In Check

Federal Appellate Courts Begin To Show Judicial Courage