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Court decisions show legal backlash to Bush

Jose Padilla
Jose Padilla

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WASHINGTON (Reuters) -- Two court rulings last week about the rights of prisoners held in the U.S. "war on terrorism" represent a rebuke to the Bush administration's legal tactics following the September 11 attacks, analysts and human rights organizations said.

The first decision by the U.S. Second Circuit Court of Appeals concerned Jose Padilla, a U.S. citizen detained on U.S. soil and held incommunicado in a Navy prison for the past 18 months. The court last Thursday ruled 2-1 that the government did not have the right to treat him as an enemy combatant and ordered him transferred to civilian custody within 30 days or released. (Full story)

The White House speedily announced it would seek a stay, calling the decision "troubling and flawed."

Hours later, the 9th U.S. Circuit of Appeals in San Francisco ruled also 2-1 that the Bush administration lacked authority to imprison non-U.S. "enemy combatants" indefinitely.

The court sent a lawsuit on behalf of a man detained at the U.S. Navy base in Guantanamo, Cuba, back to a lower court. (Full story)

That decision, if it stands, could have wide implications for the 660 men indefinitely detained in Guantanamo without charges or the right to legal representation.

The court said indefinite detention was inconsistent with U.S. law and raised serious concerns under international law.

Human rights activists said the 2-1 decisions were a significant legal rebuke to the Bush administration, although some said the 9th Circuit decision was unlikely to stand. The U.S. Supreme Court will decide in the coming months whether federal courts have any jurisdiction over Guantanamo Bay.

"The two cases are different. It's questionable whether people captured during a war in Afghanistan are entitled to any of the protections of the U.S. Constitution," said Robert Levy,

a constitutional expert with the libertarian Cato Institute.

As for Padilla, Levy said his treatment was the single most egregious violation of civil liberties committed by the Bush administration, which he said had treated the Constitution in this case as if it were "mere tissue paper."

Mark Graber, a government professor at the University of Maryland, said there was growing evidence that even conservatives on the bench were uncomfortable with some of the powers that the administration has assumed.

"This is a sign of concern that the administration has gone too far and seems to think it can suspend the Constitution whenever it sees a potential danger," he said.

Amnesty International's U.S. director William Schultz, while welcoming the Padilla ruling, noted that it opened the way for President Bush to go back to Congress and request the powers the court denied.

"The Court has clearly said that the President cannot unilaterally detain individuals without access to a lawyer, but it also laid the groundwork for future detentions in denial of basic rights providing he has permission from Congress," he said.

Following the attacks of September 11, 2001, on New York and Washington, Congress passed the U.S.A. Patriot Act that broadly expanded law enforcement's surveillance and investigative powers. Attorney General John Ashcroft argued that the law was needed to protect the nation against terrorism.

Policies unpopular abroad

Detainees are shown at the Guantanamo Bay detention camp.
Detainees are shown at the Guantanamo Bay detention camp.

But some of the administration's other actions, especially the treatment of international detainees in Guantanamo Bay, have been highly unpopular overseas, complicating U.S. foreign policy.

The government's case against Zacarias Moussaoui, the only individual charged with involvement in the attacks, has also run into trouble.

District Court Judge Leonie Brinkema ruled in October that prosecutors could not request the death penalty or present evidence about Moussaoui's alleged knowledge of, or involvement in, the September 11 attacks to punish the government for refusing to let Moussaoui's lawyers question the al Qaeda captives.

The government asked a federal appeals court in Richmond, Virginia, to overturn that decision earlier this month. The court has yet to rule.

Jamie Fellner of Human Rights Watch said the Padilla decision was narrow and would affect few people but still carried symbolic weight.

"In essence, the court has said the president can't just do anything he wants and justify it by saying it's a military decision," she said.

"It's been over two years now since September 11 and it's taken that long for the courts to begin to have their say. But it's beginning to happen now," Fellner said.

Some 225 cities, towns and counties have passed resolutions against the Patriot Act. The latest in the past week were Toledo, Ohio, and King County, Washington. But the issue is not likely to loom large in next year's presidential campaign.

Polls have shown most Americans support the Patriot Act Gallup survey in October found that 69 percent of Americans believe the act was "about right" or did not go "far enough" in restricting civil liberties in order to fight terrorism."

Copyright 2003 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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