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US court rejects detention policy

Says citizen can't be held indefinitely

WASHINGTON -- A federal appeals court ruled yesterday that President Bush does not have the power to order that a US citizen captured in this country be held indefinitely as an "enemy combatant," the biggest judicial setback for the administration so far in the war on terrorism.

A second rebuff came a few hours later when another federal appeals court ruled that foreign citizens held at the American naval base at Guantanamo Bay, Cuba, can file challenges in US courts to their indefinite detention -- an issue already before the Supreme Court.

In both decisions, the courts addressed the tensions between civil liberties and the nation's security, coming down on the side of individual rights. But the rulings were limited, and left some significant questions about the detention of suspected terrorists.

By a vote of 2 to 1, the US Court of Appeals for the Second Circuit in New York ordered Defense Secretary Donald H. Rumsfeld to release Jose Padilla from a Navy brig in Charleston, S.C., within 30 days, and then turn him over for possible prosecution in a federal court -- with all the legal rights of any other US citizen. Padilla was detained in Chicago 18 months ago on suspicion of plotting to detonate a radioactive "dirty bomb" in the country and receiving explosives training from the Al Qaeda network, but he has not been charged with a crime.

The Second Circuit ruled that the president has no authority on his own, and has been given none by Congress, to designate Padilla as an "enemy combatant" and hold him with no legal rights until the war on terrorism is over.

"Primary authority for imposing military jurisdiction upon American citizens lies with Congress," the three-judge panel ruled.

White House press secretary Scott McClellan, calling the ruling "troubling and flawed," told reporters that Bush had directed the Justice Department to seek the suspension of that decision "and further judicial review."

That would mean either asking the full bench of the Second Circuit to reconsider the decision, or taking the case to the Supreme Court.

The Second Circuit confined its ruling to the detention of a US citizen captured on US soil, stressing that it was not ruling upon presidential power involving any captive seized "on a foreign battlefield or while actively engaged in armed conflict against the US" anywhere. The court also said it was not barring the president from detaining a terrorist "in the face of imminent attack."

Without questioning the government contention that the United States is in an "undeclared war" with Al Qaeda, the court said a president could not exercise powers "allocated to Congress" even during a national emergency. The president's action, the majority said, runs directly counter to a 1971 act of Congress that bars all detention of citizens during times of war or national crisis -- a law prompted in part by revulsion over the detention of American citizens of Japanese ancestry during World War II.

The ruling was written jointly by US appellate judges Rosemary S. Pooler and Barrington D. Parker Jr. Pooler was named to the appeals court by Bill Clinton. Parker, initially a District Court judge named by Clinton, was elevated to the appeals court by Bush. Dissenting was US Appellate Judge Richard C. Wesley, a Bush appointee.

The family of another US citizen who was captured abroad, in Afghanistan, has filed a challenge of his indefinite detention in the Supreme Court, which has not decided whether to consider the case. A different federal appeals court, the Fourth Circuit, has upheld the detention of Yaser Esam Hamdi and denied the Saudi-American access to a lawyer or other legal rights. The Defense Department has recently said it would allow Hamdi to see a lawyer, but that has not yet occurred.

Besides where Padilla and Hamdi were captured, their cases differ because the Pentagon has said it has finished questioning Hamdi for information about terrorism, while US lawyers have said that the Pentagon needs to continue Padilla's interrogation and does not want him to see a lawyer until its conclusion.

In the second ruling of the day, the US Court of Appeals for the Ninth Circuit in San Francisco rejected the administration's argument that the 650 individuals held at Guantanamo Bay have no legal rights.

The majority opinion in the 2-to-1 decision declared that federal courts have jurisdiction over the naval base in Cuba because it is so thoroughly controlled by the US government that it is essentially a part of national territory. The plea for access to US courts was filed by the brother of a detainee, Faren Gherebi, a Libyan who was captured in Afghanistan.

The Ninth Circuit decision was written by US Appellate Judge Stephen R. Reinhardt and joined by Senior District Judge Milton I. Shadur, both appointed by President Carter. Dissenting was US Appellate Judge Susan Graber, a Clinton appointee.

Reinhardt, known as one of the most liberal federal judges, strongly denounced administration policy toward the detainees in Cuba. "It is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike," he wrote.

But the opinion stressed that the court was not deciding the legality of the detention, nor was it specifying what challenges detainees could raise in American courts.

The legal fate of the detainees in Cuba is already before the Supreme Court in a case the justices agreed in November to hear, filed by relatives of 16 foreign nationals in custody at Guantanamo.

The administration has taken some steps recently to try to defuse the international criticism of the indefinite detentions of foreign nationals at Guantanamo, releasing some and designating six individuals for charges to be tried before a military tribunal.

Yesterday, the Pentagon said it would allow another detainee there, Salim Ahmed Hamdan of Yemen, to consult a lawyer. He is one of the six to face military charges, to be tried at the base in Cuba. Another of those six, Australian David Hicks, recently met with an attorney from his country after the Pentagon granted permission. The Pentagon says it would allow access to lawyers when detainees have been designated for military trials.

Both supporters and critics of the Bush administration's policies in the war on terrorism called the one-two judicial punch -- coupled with the release of a new Justice Department inspector general report detailing abuses of illegal immigrants rounded up after the attacks -- the single most stunning day in the two-year battle over civil liberties in the post-Sept. 11 era.

Elisa Massimino, Washington director of the Lawyer's Committee for Human Rights, called the day a triple victory for the rights of different kinds of detainees in the war on terrorism -- be they US citizens arrested in the country and accused of links to terrorism, illegal immigrants arrested in the United States, or foreigners arrested abroad and held at the naval base in Cuba.

"It's a very good day for the Constitution, and it's a good day for the rule of law," Massimino said. "The fact that the war on terrorism is a `different kind of war' doesn't mean that you can make up the rules as you go along. It doesn't mean that the Constitution and the laws of war are irrelevant."

But Brad Berenson, a former associate White House counsel who left the administration earlier this year, called the rulings "profoundly wrong and profoundly dangerous." He said the judges, and the civil liberties groups celebrating the decisions, seemed not to appreciate that the United States is at war inside its own borders.

"They are very excited because to them anything that reduces the might of the United States . . . is a victory," Berenson said. "But to conservatives and supporters of the administration who honestly believe that the future of Western civilization could be at stake in the successful prosecution of this war, to have judges stepping in and hampering our ability to fight is intolerable."

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