A U.S. federal judge ruled on Monday that the government must allow alleged terrorists and Al-Qaida members detained at the U.S. military prison at Guantanamo Bay to fight their detention through the U.S. civilian justice system, with all the rights and protections it provides. The judge said special military review boards set up by the Defense Department are not sufficient.
The ruling contradicts a decision by another federal judge two weeks ago, and higher courts will have to rule on the discrepancy. But the ruling has re-ignited the controversy over how to treat the detainees, whose fate has been an international issue.
Judge Joyce Green ruled that the approximately 550 men held at Guantanamo as “enemy combatants” have been denied what she called “fundamental rights,” including the right to a lawyer and the right to see and challenge the evidence against them. She said the U.S. government can not ignore those rights even though the country is facing what she acknowledged are 'enormous and unprecedented threats.'
If the ruling is upheld by higher courts, it would open the U.S. legal system to the detainees, many of whom might be able to regain their freedom. That worries some legal experts, like former senior Justice Department official Bruce Fein.
"She imposed procedural safeguards that are proper in a criminal prosecution in the quite inappropriate place, namely when you're detaining people picked up on the battlefield, or otherwise, during wartime, not for the purpose of criminal punishment, but to elicit intelligence and to detain so that they may not return to the battlefield," said Mr. Fein.
Mr. Fein says prisoners of war have never been given the right to appeal their status in the courts, and that should not start now.
Judge Green based her decision in part on her concern that there may not be a firm end date to the war on terrorism. Normally, prisoners of war would be sent home once a war is over, but she is concerned that these detainees could be held for their entire lives. For Mr. Fein the larger concern is that these men could return to their alleged terrorist ways, and potentially participate in another attack on the United States on the scale of September 11, 2001.
"When the harm to the country is so severe and acute that it involves thousands of lives, and upsetting the lives of virtually everyone in the United States, then the balance tilts in a different way with regard to presumption of innocence and the risk of error than it does in an ordinary criminal case," he added.
Indeed, Mr. Fein notes that some former detainees who were released from Guantanamo have fought U.S. forces in Afghanistan, and others are alleged to have rejoined the Al-Qaida terrorist network. His views are supported by the federal judge who ruled two weeks ago that the detainees have no right to access to the U.S. civilian court system.
But other experts worry that that approach runs counter to the basic principles of American justice, and they praise Judge Green for telling the government that it must do better.
"I think it's a reaffirmation of some central principles of American constitutional law," said Eugene Fidell, an expert on military law at a Washington law firm. He says Mr. Fein's approach ignores 1500 years of western legal tradition.
"The United States constitution is our guiding principle, and under it people have a right to due process of law,” he noted. “If you study Judge Green's opinion, you see a variety of respects in which even in a military context, due process has been violated."
Mr. Fidell says the detainees have the right to see the information that is the basis for the charges against them, the right not to be punished just for being a member of an organization and the right to have any evidence thrown out if it was obtained through torture, as some of the detainees have claimed.
As to the dangers of providing a system that could release some of the detainees who could then fight against the United States, Mr. Fidell says all the government has to do is prove its cases, and the men can be held.
The Justice Department, which represents the government in cases before the federal courts, issued a statement saying it disagrees with Judge Green, and agrees with the earlier ruling barring the detainees from U.S. courts. It says there is no basis in the Constitution, for giving the detainees the due process of law that Judge Green requires.
The Defense Department says it is already providing the detainees with an unprecedented level of due process in the Review Tribunals it established last year and that nothing more is justified. Those tribunals were established in response to an order by the U.S. Supreme Court. But the current cases before Judge Green claim the tribunals are not sufficient, and Judge Green agreed.
Now the cases will go to the Court of Appeals, and Mr. Fidell believes the Supreme Court will rule on the issue again by the end of the year. He expects the court to agree with Judge Green, and force the government to give the detainees access to U.S. courts, and all the rights that go along with that.
"In the United States, we have a robust system of law,” said Mr. Fidell. “I believe that the federal courts play a key role in guaranteeing the continued health of our society. And I think this case is an illustration of how there is a deep connection between our national values and the administration of justice."
The issues involved in this case put two of those “national values” at odds with each other, national security and the equal protection of the law for all people. It is those values, which the Court of Appeals, and possibly the Supreme Court, will be called upon to balance.