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'Enemy combatant' process unconstitutional
World Peace Herald
By Michael Kirkland
UPI Legal Affairs Correspondent
Published January 31, 2005

WASHINGTON -- A federal judge ruled Monday that the procedure used to determine whether prisoners are "enemy combatants" -- which in some cases may have used confessions obtained by torture -- is unconstitutional.

The judge also ruled, in conflict with an earlier separate decision by another federal judge in Washington, that the Geneva Convention rights of some detainees at Guantanamo Bay have been violated, while conceding that actual al-Qaida members are not entitled to convention protections for prisoners of war.

The ruling is almost certain to be appealed by the federal government.

The government contends President George W. Bush has the authority to hold "enemy combatants" indefinitely, at least until the war on terror is considered officially over or they are no longer found, on a case by case basis, to be a danger to the United States.

U.S. District Court Judge Joyce Hens Green ruled on procedural matters in 11 combined petitions from detainees being held at the U.S. Naval Base in Guantanamo. It was not clear how many of the detainees are represented in the petitions.

The judge underpinned her ruling with a string of Supreme Court decisions last term in which a majority of the justices said detainees have the right to constitutional review of their cases in U.S. courts.

Many of those being held at Guantanamo were captured fighting for the Taliban regime in Afghanistan, but others were not. All were transferred from the site of their captures to the Naval Base, beginning in early 2002.

"In addition to belligerents captured during the heat of war in Afghanistan, the U.S. authorities are also detaining at Guantanamo Bay ... numerous individuals who were captured hundreds or thousands of miles from a battle zone in the traditional sense of that term," Green said. "For example, detainees at Guantanamo Bay who are presently seeking (constitutional) relief in (U.S. District Court in Washington) include men who were taken into custody as far away from Afghanistan as Gambia, Zambia, Bosnia and Thailand. Some already have been detained as long as three years while others have been captured as recently as September 2004."

Those being held at Guantanamo to be tried before military commissions on war crimes have more rights than those who are not, the judge said.

The former, but not the latter, get notice of charges, a presumption of innocence, a right to counsel, pretrial disclosure of any information helpful to the defense, evidence the prosecution intends to use at trial, the right to call witnesses, the right to have counsel cross-examine witnesses and the right to have the media present for unclassified portions of the trial.

"Although detainees at Guantanamo Bay not subject to prosecution could suffer the same fate of those convicted of war crimes -- potentially life in prison, depending on how long America's war on terrorism lasts -- they were not given any significant procedural rights to challenge their status as alleged 'enemy combatants,' at least not until recently," the judge said.

After the Supreme Court rulings last June, Deputy Defense Secretary Paul Wolfowitz issued an order setting up a panel to determine "enemy combatant status" -- the Combatant Status Review Tribunal.

He also issued the first official definition of the term as used by the government: "'Enemy combatant' shall mean an individual who was part of or supporting Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

Detainees have the right to hear the non-classified factual basis for their detention, to present evidence and to testify why they should not be so classified. They have no attorney, but a military officer serves as a "personal representative."

The review tribunal is allowed to consider classified evidence, but the detainee is not entitled to access it or know the details.

A military judge appointed by the Navy reviews the classifications.

In her ruling Monday, Green said the Supreme Court in Rasul vs. Bush and other high-court precedent requires "the recognition that the detainees at Guantanamo Bay possess enforceable constitutional rights."

Recognizing these rights, including the "due process," or fair proceedings, guarantee of the Fifth Amendment, "would not cause the United States government any more hardship than would recognizing the existence of constitutional rights of the detainees had they been held within the continental United States," Green said. " ... 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 200 years."

Green said the Combatant Status Review Tribunal proceedings "fail to satisfy constitutional due process requirements in several respects."

The first, she said, was the failure to provide the detainees access to material evidence upon which their "enemy combatant" status was upheld, and the failure to permit the assistance of counsel.

In one example, the recorder of the tribunal asserted, "While living in Bosnia, the detainee associated with a known al-Qaida operative." When the detainee asked who the al-Qaida operative was, the tribunal president answered, "I do not know."

The procedures also fail because of the vague and overly broad definition of "enemy combatant" and because they rely on statements that may have been obtained through torture and other coercion, Green said.

In one case, a suspect named Mamdouh Habib was captured in Pakistan. Habib said he was sent to Egypt for interrogation, where he was routinely beaten until he became unconscious. Habib also claimed he was placed in a locked room where water was allowed to rise to his chin, forcing him to stand on his toes for hours; and that he was suspended from a wall with his feet resting on an electrified cylindrical drum, forcing him either to suffer pain from hanging or burns from electric shock.

After that, Habib contends, he made "numerous confessions." Only then was he sent to Guantanamo Bay.

"Mr. Habib is not the only detainee before this court to have alleged making confessions to interrogators as a result of torture," Green said.

The judge also cited an FBI document, obtained by the American Civil Liberties Union under the Freedom of Information Act, in which a bureau official said on occasion he saw at Guantanamo "a detainee chained hand and foot in a fetal position on the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18-24 hours or more."

The FBI official also said detainees were subjected by the U.S. military to extreme cold or heat and "extremely loud rap music" while being chained in one position on the floor.

Green said she could make no determination on whether the torture claims were valid.

The judge's opinion was heavily redacted -- blacked out -- because of classified material on some pages.

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