A skeptical federal appeals court Monday questioned whether it has the authority to help detainees in the war on terrorism who have been held for many months, without lawyers and without being charged, at the U.S. naval base in Guantanamo Bay, Cuba.
The United States has been involved in many wars in its history, "but this is the first time we have sacrificed the rule of law," attorney Joe Margulies told judges A. Raymond Randolph, Stephen Williams and Merrick Garland.
Lawyers for the detainees and their families say the Bush administration is stretching the meaning of a half-century-old U.S. Supreme Court case and is denying rights to people picked up in Afghanistan and Pakistan.
But the three judges asked a series of questions seeming to cast doubt on whether they can direct the U.S. military to give due process rights to the aliens in Guantanamo.
The detainees "are asking for the most modest of rights," said Thomas B. Wilner, who is representing a group of 12 Kuwaitis. "We ask simply that a legal process be applied to them as it has been everywhere"
Randolph and Williams expressed doubt that any legal remedy applied to the detainees.
Williams was appointed during the Reagan administration, Randolph during the first Bush administration, and Garland is a Clinton appointee.
Guantanamo has nearly 600 detainees.
Deputy Solicitor General Paul Clement said that the Guantanamo detainees are enemy combatants and lack standing in us courts because they are being held outside the united states.
The government is relying on a 1950 Supreme Court ruling involving German nationals in World War II convicted before a military
Like the Germans, the Guantanamo detainees "are 'actual enemies, active in the hostile service of an enemy power'" and they lack standing in U.S. courts, the Justice Department said in recent court papers.
The two cases are completely different, lawyers for the detainees and their families responded.
"It is one thing to acknowledge ... that enemy aliens in the active service of a hostile state cannot seek post-conviction relief in the federal courts," they said in a court filing. "But it is quite another to suggest ... that any alien ... may be deprived of their liberty indefinitely by the United States military, with no legal process, simply by the expedient of bringing them to Guantanamo Bay."
"Congress has never so much as intimated, let alone made a 'plain statement,' that aliens detained outside the 50 states have no right to seek the writ of habeas corpus," the filing said. The appeals court should "recognize Guantanamo Bay for what it is: a fully American enclave with 'the basic attributes of full territorial sovereignty.'"
The U.S. military announced late last year that the 45-square-mile base on the southeastern tip of Cuba, the oldest U.S. overseas outpost, was the destination for Taliban and al-Qaida prisoners.
The United States leased the land for the base from Cuba in 1903 for 2,000 gold coins a year, now valued at $4,085. Washington pays that amount every year, but Fidel Castro's government refuses to cash the checks.
The base is surrounded by 17.4 miles of fence line and a corresponding Cuban fence line and minefield.
As for the detainees in the appeals court case:
Habib's Sydney-based attorney, Stephen Hopper, told Australian television that Habib, who also holds Egyptian citizenship, visited New York in 1991 and met a man who later was convicted in the 1993 World Trade Center bombing. Subsequently, another man convicted in the 1993 bombing called Habib in Australia a couple of times trying to get him to raise money for his defense, Hopper said.
The other Guantanamo prisoners are from more than 40 countries and include about 60 Pakistanis and some 100 Saudi Arabians. A handful of Afghan and Pakistani detainees have been sent home from Guantanamo after being cleared of terrorist suspicions.
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