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Denies detainees court { August 1 2002 }

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   http://www.washingtonpost.com/wp-dyn/articles/A28184-2002Jul31.html

http://www.washingtonpost.com/wp-dyn/articles/A28184-2002Jul31.html

Judge Denies Detainees in Cuba Access to U.S. Courts


By Neely Tucker
Washington Post Staff Writer
Thursday, August 1, 2002; Page A10


The 600 suspected terrorists being held at the U.S. naval base in Guantanamo Bay, Cuba, have no right to bring their cases to U.S. courts, a federal judge in Washington ruled yesterday in a decision that allows the government to continue holding the detainees indefinitely.

In a 34-page ruling, U.S. District Judge Colleen Kollar-Kotelly rejected efforts by 16 captives to end the government's policy of holding them without charges, access to lawyers or trial dates. It was the first time a U.S. judge had ruled on the merits of that practice.

Kollar-Kotelly ruled that although the men may have "some form of rights under international law," such as the Geneva Convention, their nationalities and their geographic location mean that they do not have the right to press their cases in U.S. courts.

"The court concludes that the military base at Guantanamo Bay, Cuba, is outside the sovereign territory of the United States. Given that . . . writs of habeas corpus are not available to aliens held outside the sovereign territory of the United States, this court does not have jurisdiction" to hear the case, she wrote.

Eugene Fidell, president of the National Institute of Military Justice, a Washington-based nonprofit legal organization that is not involved in the case, said Kollar-Kotelly's decision means that "the detainees have no meaningful access to U.S. courts."

"Unless this is overturned, any submissions from inmates at Guantanamo are going to be futile," Fidell said.

Lawyers for the plaintiffs -- two British nationals, two Australians and 12 Kuwaitis -- promised to appeal.

"None of the men in Guantanamo have been accused of anything," said Barbara Olshansky, assistant legal director for the Center for Constitutional Rights, a New York-based nonprofit organization representing Shafiq Rasul, a British national, and three other plaintiffs.

"The judge's decision is in error from many perspectives. She says they have access to international law, but it isn't clear how they would ever get it if they can never see their lawyers or have any form of due process. . . . The U.S. calls countries the world over to task for these sorts of abuses."

Monica Goodling, a spokeswoman for the Justice Department, said officials there were pleased with the judge's decision.

The administration has said it will treat the Guantanamo Bay captives in accordance with policies governing prisoners of war but has refused to give them that label because it would afford them a number of rights, including the right to be repatriated after the war is over.

The plaintiffs in the Guantanamo case have been held since they were captured in Afghanistan or Pakistan by U.S. forces who were pursuing Taliban or al Qaeda members.

Others captured in the war on terror have been treated in various ways. Zacarias Moussaoui, a French national apprehended in Minnesota and charged as a conspirator in the Sept. 11 attacks, is being tried in federal court in Alexandria. John Walker Lindh, an American captured in Afghanistan, also faced criminal charges there before he pleaded guilty last month.

Richard Reid, a British citizen who tried to blow up a jetliner over the Atlantic Ocean, is scheduled to be tried in federal court in Massachusetts.

Yaser Esam Hamdi, another American captured in Afghanistan and originally taken to Guantanamo Bay, is being held in a military brig in Norfolk. He has not been charged or allowed access to a lawyer. Jose Padilla, an American apprehended in Chicago as he was allegedly scouting targets in a plot to detonate a radioactive bomb, is being held in a South Carolina military prison without charges. Both men have been designated "enemy combatants" by President Bush.

Kollar-Kotelly based her ruling on Supreme Court precedent from the World War II era. In that case, Johnson v. Eisentrager, German spies were captured by allied forces in China after the Nazis surrendered but before Japan stopped fighting.

The Germans were tried and convicted of espionage by a U.S. military tribunal in China and sent to a prison in Germany that was, in the postwar days, under the command of a U.S. officer. The Germans appealed to U.S. courts but were ultimately rejected by a divided Supreme Court. The court ruled that they could not extend the writ of habeas corpus -- a judicial determination about the legality of an individual's custody -- to foreigners held outside the United States.

That opinion, Kollar-Kotelly ruled, applies to Guantanamo Bay, a military base that the United States leases from Cuba where nearly 600 captives are being held. The Navy has announced plans to expand the prison, known as Camp Delta, by an additional 204 cells.

Staff writer John Mintz contributed to this report.



2002 The Washington Post Company


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