WASHINGTON, 13 March 2003 — Afghan war detainees, including two Britons and two Australians, cannot challenge the lawfulness and conditions of their confinement at a US Navy base at Guantanamo Bay in Cuba, a federal appeals court ruled on Tuesday. The unanimous three-judge panel ruled US courts lack jurisdiction to hear the challenges that also were brought by 12 Kuwaitis. All 16 are being held, without access to their families or lawyers, by the US military at the base after their capture during the war in Afghanistan.
“They cannot seek release based on violations of the US Constitution or treaties or federal law; the courts are not open to them,” Judge A. Raymond Randolph of the US Court of Appeals for the District of Columbia Circuit said. Randolph wrote in the 18-page ruling that no court in the United States has jurisdiction to grant federal habeas relief to the detainees, even if they had not been declared enemies of the United States. “We cannot see why, or how, the writ (of habeas corpus) may be made available to aliens abroad when basic constitutional protections are not,” he wrote.
“If the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty,” Randolph concluded. The appeals court upheld a ruling by US District Judge Colleen Kollar-Kotelly in dismissing the three lawsuits.
Michael Ratner, president of the New York-based Center for Constitutional Rights and one of the attorneys for the detainees, denounced the ruling. “The right to test the lawfulness of one’s detention is a foundation of liberty that has roots going back to the Magna Carta,” he said. “Every detained person has a right to his day in court.”
“You can’t just drop people into a black hole and forget about them,” added CCR lawyer Joe Margulies. Lawyers speaking on behalf of the Kuwaiti prisoners also expressed their dismay. “This is a sad day for American principles of justice and fairness. This decision ... gives a green light to United States officials to imprison foreigners outside the rule of law,” lawyers Thomas Wilner and Kristine Huskey said in a statement.
Amnesty International USA said continued denial of access to legal counsel violated US obligations under international law. “To hold people without charge and without access to legal counsel risks the creation of an ‘American gulag’ for those detained in the course of the war on terror,” the human rights group said in a statement.
The decision was a victory for the Bush administration’s Justice Department, which said the more than 600 people being held at Guantanamo Bay are “enemy combatants” who have no rights under the US legal system. Attorneys for the detainees said they had not been specifically declared members of Al-Qaeda or the Taleban, and that family members of the prisoners also said the detainees claimed not to be enemy combatants.
