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Judge Rules Detainee Tribunals Illegal

By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, February 1, 2005; Page A01

A federal judge ruled yesterday that the Bush administration must allow prisoners at the military prison at Guantanamo Bay, Cuba, to contest their detention in U.S. courts, concluding that special military reviews established by the Pentagon as an alternative are illegal.

U.S. District Judge Joyce Hens Green said that the approximately 550 men held as "enemy combatants" are entitled to the advice of lawyers and to confront the evidence against them in those proceedings. But, she found, the Defense Department has largely denied them these "most basic fundamental rights" during the reviews conducted at Guantanamo Bay, in the name of protecting the United States from terrorism.

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Green's ruling directly conflicts with one issued by another federal court judge in Washington two weeks ago. U.S. District Judge Richard J. Leon, who heard the case of a smaller group of detainees, wrote that their bid for freedom is supported by "no viable legal theory." Green went beyond the question of whether detainees had rights and found the "combatant status review tribunals" illegal.

The conflict will now head to higher courts. Still, Green's decision was a legal victory for the detainees and for the civil liberties groups that filed claims on their behalf last summer. It underscored the ongoing legal battle over how to implement a landmark Supreme Court ruling last summer that gave the detainees the right to contest U.S. accusations and challenge their indefinite detentions.

Green, who is overseeing more than 60 legal claims from detainees challenging their imprisonment, said some captives may indeed be Taliban or al Qaeda fighters, as the U.S. military argues. But, she said, the reviews designed to determine that are so stacked against them that their findings cannot be trusted. Because of the imbalance, she said, she cannot dismiss the detainees' claims, as the government had asked.

"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years," Green wrote.

Green found that the military relied heavily on reported confessions of detainees to determine whether they are enemy combatants. But she expressed some skepticism about the reliability of such confessions because of widespread allegations and some evidence of abuse of detainees during interrogations.

The Pentagon has completed 558 combatant status reviews since July and taken final action in 330 cases. Military officials have determined that 327 men were rightfully classified as enemy combatants and ordered the release of the other three.

One lawyer who filed dozens of legal challenges on behalf of detainees within hours of the Supreme Court ruling said the government has stonewalled for more than seven months since that decision.

"The good thing about this ruling is it says, 'Hey, you, in the White House, this law applies to you,' " said Barbara Olshansky of the Center for Constitutional Rights. "But it also sends a message around the world, that despite this vigilante administration, our democratic institutions are working and are here to make sure we stay in line with the principles upon which our country was founded."

Lawyers and a spokesman for the government said they agreed with Leon's decision and planned to appeal Green's. "The Department of Defense continues to believe that the combatant status review tribunals provided an appropriate venue for detainees to meaningfully challenge their enemy combatant designation," said Navy Lt. Cmdr. Flex Plexico.

Green criticized the military for using what she called an illogically broad definition of "enemy combatant" in deciding to hold Muslim men from dozens of countries for as long as three years. She said in many cases people were detained simply for being alleged members of groups that do not like Americans.

Green quoted extensively from the tribunal proceeding against Mustafa Ait Idir, 34, an Algerian living in Bosnia who was accused of plotting with others to blow up a U.S. embassy there. Idir noted that a Bosnian court found no evidence against him and repeatedly but unsuccessfully asked tribunal officials to present their evidence that he was an al Qaeda fighter. He argued he could not prove a negative, and that he would hit a person who claimed he was a terrorist in the face, which prompted the tribunal members to laugh.

The exchange "might have been truly humorous had the consequences of the detainee's 'enemy combatant' status not been so terribly serious and had the detainee's criticism of the process not been so piercingly accurate," the judge wrote.

Green also differentiated between fighters for Afghanistan's former Taliban government and al Qaeda operatives, concluding that Taliban members, because they fought in the name of the Afghan government, are entitled to international protections provided to prisoners of war under the Geneva Conventions. The U.S. government has repeatedly asserted that it is not required to apply the protections to members of either group because all are enemy combatants engaged in terrorism.

Lawyer Eugene R. Fidell, an expert on military law, said Green's ruling is one of a growing number of court decisions limiting White House efforts to claim unbridled power in the name of combating terrorism.

"This is a classic illustration of someone speaking truth to power," Fidell said. "It's things like this that make the judiciary the jewel in the crown of our democracy."

Bruce Fein, who was a Justice Department official in the Reagan administration, criticized Green's ruling, saying she had "made a strained effort to slap the government" and confused wartime enemies with American citizens.

Researcher Julie Tate contributed to this report.

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