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British judges criticized { November 9 2002 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2002/11/09/international/europe/09DETA.htmlhttp://www.nytimes.com/2002/11/09/international/europe/09DETA.html
November 9, 2002
British Judges Criticize U.S. on the Prisoners Held at Guantánamo
By NEIL A. LEWIS
WASHINGTON, Nov. 8 — A panel of three senior British judges used extraordinary language in a ruling this week to criticize the United States' detention of prisoners from Afghanistan at Camp X-ray in Guantánamo Bay in Cuba.
The three judges, ruling in a case involving a British subject held at Guantánamo, said detention of prisoners at the United States naval base there appeared to be a violation of both international law and the concept of habeas corpus developed centuries ago in England.
Although the judges said the holding of prisoners at Guantánamo with no recourse to a court created an unacceptable "legal black hole," they acknowledged that they could do little about it. But it appeared evident that the judges were intent on sending a message to an appeals court in the United States that is considering the same issue.
The panel, the rough equivalent of a federal appeals court in the United States, ruled in the case of Zumrati Juma, the mother of 23-year-old Feroz Abassi, who has been detained at Guantánamo for 10 months.
"What appears to us to be objectionable is that Mr. Abassi is subject to indefinite detention in territory over which the United States has exclusive control, with no opportunity to challenge the legitimacy of his detention before any court or tribunal," they said in an opinion written by Lord Phillips, the master of the rolls, one of Britain's most senior judicial posts.
"It may be the anxiety that we have expressed will be drawn to their attention," Lord Phillips wrote.
Geoffrey Robertson, a prominent barrister and authority on human rights law, said in a telephone interview from London that the judges were clearly hoping to influence the pending case before the United States Court of Appeals for the District of Columbia.
"They were expressing that it is inconceivable for something like this to occur in the English system," Mr. Robertson said. Moreover, he said it was meant to show that the country that originated the writ of habeas corpus — which allows any imprisoned person to challenge a detention before some body — felt strongly about the issue.
A three-judge panel of the United States appeals court is scheduled to hear arguments in the case on Dec. 2. The judges will hear an appeal of a ruling in July that gave a significant legal victory to the Bush administration.
In that ruling, Judge Colleen Kollar-Kotelly said that the American naval base at Guantánamo was not formally part of the United States and, that as a result, the detainees did not have constitutional protections. Under well-established principles, even noncitizens have some constitutional protections once they are inside the United States.
In dismissing the cases brought on behalf of two Britons, an Australian and several citizens of Kuwait, Judge Kollar-Kotelly said she did not believe that any court would have jurisdiction over the Guantánamo detainees. There are more than 600 prisoners now being held at the base, according to the Defense Department.
Eugene R. Fidell, a Washington lawyer and an authority on military law, said the ruling from London was significant because the judges did not have to comment on the legality of the detention once they decided that the case was out of their jurisdiction. Instead, he said, they offered a view on how the writ of habeas corpus should apply in this case.
In acknowledging that they could not issue any orders in the case, the British judges declined the request of Mr. Abassi's mother that they direct the British foreign secretary to make representations to Washington.
"There can be no direct remedy in this case," the opinion said. "The United States government is not before this court, and no order of this court could be binding on it."
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