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Judge challenges US on detainees { December 2 2004 } Original Source Link: (May no longer be active)
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/12/02/MNG9RA4RD81.DTLhttp://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/12/02/MNG9RA4RD81.DTL
Judge challenges U.S. on detainees
Power to imprison 'enemy combatants' called into question
- Carol D. Leonnig, Washington Post
Thursday, December 2, 2004
Washington -- A federal judge Wednesday questioned the Bush administration's broad definition of its powers to indefinitely imprison alleged Taliban and al Qaeda fighters at the military prison in Guantanamo Bay, Cuba, especially those who have never taken up arms against the United States.
U.S. District Judge Joyce Hens Green's questions came as the Defense Department argued during a hearing that it has properly imprisoned 550 people as "enemy combatants" at Guantanamo Bay, based on at least some evidence that they were Taliban or al Qaeda members or assisted or supported terrorist groups.
Government attorneys, who are asking Green to dismiss the claims of 54 Guantanamo detainees who have challenged their imprisonment, said Wednesday that a federal court should not micromanage the president's war on terror.
"The military has an interest in holding people who pose a risk," Brian Boyle, deputy associate attorney general, said of the Pentagon's decision to hold some people for nearly three years. "We're not detaining these people just because there's some enjoyment in it."
But Green, who is overseeing the detainee cases that followed a landmark Supreme Court ruling in June, pressed the government to acknowledge that the Bush administration's broad definition of "enemy combatant" could ensnare scores of seemingly benign people in military prison cells indefinitely.
"If a little old lady in Switzerland writes checks to what she thinks is a charitable organization for Afghanistan orphans, but it's really supporting . .. al Qaeda, is she an enemy combatant?" Green asked.
Boyle said the woman could be, but it would depend on her intentions. "It would be up to the military to decide as to what to believe," he said.
Boyle said the military can pick any foreigner who provides support to terrorists or might know of their plans. And the foreigners held on the U.S. naval base in Cuba "have no constitutional rights enforceable in this court," Boyle told the judge.
"That's really shocking," Thomas B. Wilner, attorney for 12 Kuwaiti detainees, told reporters after Green's hearing. "People throughout the world will fear the United States is asserting the power to pick up little old ladies and men who made a mistake."
The Supreme Court ruled that enemy combatants held at Guantanamo Bay are entitled to contest their imprisonment in U.S. courts. Some detainees subsequently filed habeas corpus cases in D.C. federal courts.
The Pentagon argues that the "combatant status review tribunals" it created after the Supreme Court's ruling provide sufficient opportunity for detainees to rebut charges against them, making the federal court's intervention unnecessary.
But attorneys for the detainees argued that detainees may not see the evidence against them nor consult attorneys during the tribunal proceedings, which, they said, merely rubber-stamp the administration's previous declaration that the detainees were enemy combatants. Of 160 detainees who have completed their tribunal hearings in the past three months, all but one have been declared enemy combatants.
Attorney Joseph Margulies said that in some cases, the government's only evidence that a detainee is a terrorist is the captive's own statement, given during lengthy captivity, amid physical coercion and threats. He said the tribunals mock the U.S. promise of justice.
"It's past time for the mockery to end," he said.
Based on Green's hypothetical questions, the military also could imprison a Muslim teacher whose class includes a family with Taliban connections, a man who doesn't report his suspicions that his cousin may be an al Qaeda member and a reporter who knows where Osama bin Laden is located but does not divulge the information to protect an anonymous source.
Green said the Supreme Court ruled this summer that the military may detain people but expressly for the purpose of preventing their return to the battlefield and keeping them from continuing to wage war. Several Guantanamo detainees, the government acknowledged, were arrested or seized in the United Kingdom, Bosnia and Zambia.
"What's the purpose of detaining someone who never came within 1,000 miles of a battlefield?" she asked the government's lawyers. "What quote 'battlefield' is the United States trying to prevent the detainees from returning to? Back to Africa? Back to London? Back to some acreage of land somewhere?"
Boyle said the boundaries of a war on terror are unlimited and urged Green not to set artificial ones. But attorney Brent Mickum, who represents detainees seized in Africa, questioned how the president's authority could be limitless worldwide.
"To detain anyone, anytime, anywhere in the world, indefinitely, under any rules they devise, that just can't be -- must not be -- the law of the land," he said.
The Associated Press contributed to this report
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