William Fisher

NEW YORK, Sep 12 2005 (IPS) — Media coverage of Hurricane Katrina has all but drowned out what may well be two of the most consequential human rights court decisions in recent U.S. history.

Last week, a three-judge federal appeals court panel ruled unanimously that Pres. George W. Bush has the authority to indefinitely detain a U.S. citizen, Jose Padilla, arrested in the U.S., as an enemy combatant.

But another appeals court questioned the Bush administration’s operations at Guantanamo Bay, Cuba (Gitmo), where almost all detainees have been categorised by military tribunals as enemy combatants.

Both cases are likely to surface when the Senate Judiciary Committee questions Supreme Court nominee John G. Roberts about his views on the reach of presidential power. The Roberts confirmation hearings began Monday.

In the Padilla case, the appeals panel threw out a ruling by a trial judge in South Carolina that Bush had overstepped his bounds by detaining the Chicago native for three years.

In an opinion written by Judge J. Michael Luttig, who has been considered by Pres. Bush for a nomination to the Supreme Court, the panel said Bush had the right to detain Padilla as an enemy combatant under the powers granted the president by Congress after the Sep. 11 terrorist attacks in New York and at the Pentagon.

In the Guantanamo case, the court suggested that civilian courts might have the legal authority to become involved in reviewing the tribunal procedures.

“There is nothing in the habeas statute that requires us to defer to a military tribunal,” said Appeals Judge A. Raymond Randolph, an appointee of Pres. Bush’s father.

Randolph was on the panel in 2003 that rejected the detainees’ plea for access to U.S. courts. But the Supreme Court reversed that decision a year ago.

The Bush administration’s position is that the detainees have no Fifth Amendment right to due process because they are aliens held outside the sovereign territory of the United States.

But, said Judge Randolph, “there’s still the question of whether they are lawfully detained”. Randolph pointed out that detainees are asserting that they have no connection to the Sep. 11 terrorist attacks or to al-Qaeda.

A government lawyer said the detainees are afforded many rights by the tribunals, which ruled that all but 38 of 596 detainees were enemy combatants and were not entitled to prisoner-of-war protections under the Geneva Conventions.

The government is defending the course it set in late 2001 with Pres. Bush’s declaration that all suspected terrorists are enemy combatants rather than POWs.

After last year’s Supreme Court ruling, the Pentagon hurriedly set up the tribunals of U.S. military officers who reviewed the detainees’ status. The tribunals have been criticised by a number of senior military officials, who have called them kangaroo courts.

Lower court judges have reached different conclusions regarding detainee procedures at Gitmo. One U.S. district judge has ruled that the tribunal hearings are unconstitutional. Another threw out a lawsuit by some of the detainees, saying the place for them to challenge the procedures is before the U.S. military, not in civilian courts.

Still another panel of federal appellate court judges – which included Supreme Court nominee John Roberts – ruled that neither the Geneva Conventions nor U.S. military and domestic law apply to those designated as “enemies” by the president.

The Pentagon is holding more than 500 prisoners at Gitmo. Some have been there since the detention compound was opened in January 2002. More than 200 of the detainees are currently in their fifth week of a hunger strike to protest their treatment.

Jose Padilla presents a different picture because he is a U.S. citizen, not arrested on a battlefield in Afghanistan, but rather at O’Hare Airport in Chicago. He has been held without charge in a Navy brig for the past three years.

Originally, the government claimed that Padilla intended to set off a “dirty bomb”. Now the government says he may have been planning to use gas lines to destroy apartment buildings. But it has presented no evidence of that in any court.

Government lawyers now argue that the main new reason he should be detained as an enemy combatant was that he fought U.S. forces in Afghanistan alongside al-Qaeda. But that charge is also unproven by any evidence.

In an earlier case involving a U.S. citizen, Yaser Esam Hamdi, the Supreme Court ruled that he could be detained as an enemy combatant because he was purportedly captured while fighting in Afghanistan. But even under that circumstance, the court added to the ambiguity by ruling that Hamdi was entitled under the Constitution to contest the allegations made against him by “a neutral decision-maker”.

Justice Sandra Day O’Connor, who wrote the majority opinion, said the “neutral decision-maker” might be a military tribunal with rules of evidence more favourable to the prosecution than in civil courts. Hamdi was sent back to his native country, Saudi Arabia, before that issue was resolved.

The Hamdi decision appears to mean that, while the president can declare Padilla an enemy combatant, he would still be entitled to a hearing by a “neutral decision-maker”. However, that neutral decision-maker may turn out to be a military panel of the kind widely criticised for, among other things, using secret evidence and scrapping the presumption of innocence.

Brian J. Foley, a professor at Florida Coastal Law School, told IPS, “While Padilla may have a chance to challenge the government’s decision, that challenge might take place in the sham of a Combatant Status Review Tribunal (CSRT).”

“CSRTs are being used at Gitmo against non-U.S. citizens, and secret evidence is being used. If U.S. courts ever review CSRT determinations, they will likely conclude that the use of secret evidence was improper,” he said. “It most likely would be seen as violating the Constitution to use it against U.S. citizens. It might violate the Constitution or international law to use it against non-citizens.”

Foley added, “Secret evidence should not be used against anybody, because the accused can’t ‘check’ it. Ultimately, it’s unreasonable for anybody to deem a CSRT determination accurate if secret evidence was used.”