Court rulings double blow to Bush terror strategy

US FEDERAL courts dealt a double blow to the Bush administration’s strategy in the war on terror yesterday, ruling that the US military cannot deny prisoners access to lawyers or the American courts by detaining them indefinitely.

One rulings favoured the 660 “enemy combatants” held at the US naval base at Guantanamo Bay, Cuba. The other involved American citizen Jose Padilla, who was seized in Chicago in an alleged plot to detonate a radioactive “dirty bomb” and declared as an enemy combatant.

In one case, a three-judge panel of the San Francisco-based 9th US Circuit Court of Appeals ruled that prisoners held at Guantanamo Bay Naval Base should have access to lawyers and the American court system.

In Padilla’s case, the New York-based 2nd US Circuit Court of Appeals ordered the former gang member released from military custody within 30 days and if the government chooses, tried in civilian courts. The White House said the government would appeal and seek a stay of the decision.

The White House said the Guantanamo ruling was inconsistent with the president’s constitutional authority as was the other court rulings.

“The president’s most solemn obligation is protecting the American people,” White House press secretary Scott McClellan said.

“We believe the 2nd Circuit ruling is troubling and flawed.” An order by President Bush in November 2001 allows captives to be detained as “enemy combatants” if they are members of al-Qaida, engaged in or aided terrorism, or harboured terrorists.

The designation may also be applied if it is “the interest of the United States” to hold an individual during hostilities.

The Justice Department this week said such a classification allows detainees to be held without access to lawyers until US authorities believe they have disclosed everything they know about terrorist operations.

But Padilla’s detention as an enemy combatant, the New York court ruled 2-1, was not authorised by Congress and Bush could not designate him as an enemy combatant without such

approval. Michael Greenberger, a University of Maryland School of Law professor and former Clinton administration Justice Department official, said the government “is being painted into a corner that is not very favourable. How bad of a corner will be determined by the US Supreme Court.”

The court, Greenberger said, did not address the broader question of whether constitutional rights would be violated if Bush had congressional authority to designate somebody as an enemy combatant.

Padilla, a convert to Islam, was arrested in May 2002 at Chicago’s O’Hare airport as he returned from Pakistan.

Within days, he was moved to a naval brig in Charleston, South Carolina. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaida’s top terrorism co-ordinator, who was arrested in Pakistan in March 2002.

In ordering his release from military custody, the court said the government was free to transfer Padilla to civilian authorities who can bring criminal charges. If appropriate, Padilla also can be held as a material witness in connection with grand jury proceedings, the court said.

Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling “historic.”

“It’s a repudiation of the Bush administration’s attempt to close the federal courts to those accused of terrorism,” said Dunn.

The 2-1 decision out of San Francisco was the first federal appellate ruling to rebuke the Bush administration’s position on the Guantanamo detainees being held without charges.