Washington — U.S. appeals courts dealt George W. Bush twin defeats yesterday, ruling that Washington was wrong to strip rights from detained suspects -- the latest judicial rollbacks of the sweeping powers the President has wielded in his war against international terrorism.
A New York appellate court ruled that Mr. Bush has overstepped his constitutional authority as commander-in-chief by ordering an American citizen arrested on U.S. soil held as an "enemy combatant." Another court in San Francisco said all alien detainees at the grim U.S. military camp at Guantanamo Bay, Cuba, have the right to a lawyer.
The New York ruling means that the Pentagon must either free Jose Padilla, the so-called "dirty bomber" who is alleged to have been part of an al-Qaeda plot to explode a radioactive device in a U.S. city, or turn him over to a civilian court.
"We find that the President lacks inherent constitutional authority as commander-in-chief to detain American citizens on American soil outside a zone of combat," a three-judge panel of the U.S. Second Circuit Court of Appeals said yesterday in releasing its 2-1 decision.
The White House called the ruling "troubling and flawed," and the Justice Department quickly announced it would seek a stay on the 30-day order. It could also appeal the ruling to either the full circuit court or to the U.S. Supreme Court.
But civil-rights groups cheered.
"There's a lot of clipping of presidential wings in this decision," said Michael Greenberger, a law professor at the University of Maryland who has closely tracked a slew of cases challenging the White House's anti-terrorism measures. "The government has taken a legal beating" in the Padilla ruling and other recent cases, he said.
Donna Lieberman, executive director of the New York Civil Liberties Union, called the ruling "a historic and courageous decision."
She accused the Bush administration of treating the Sept. 11, 2001, attacks as an opportunity to "hoodwink us into thinking that in the name of national security we should give up our rights."
Mr. Padilla, 32, a U.S. citizen and a convert to Islam who also goes by the name Abdullah al-Muhajir, was arrested in Chicago on May 8, 2002, after arriving from Pakistan.
Less than a month later, Mr. Bush signed an order labelling him an "enemy combatant" and directing Defence Secretary Donald Rumsfeld to put him in a South Carolina naval prison. Mr. Padilla has been there since, without charge and without access to lawyers or family .
In the second case yesterday, the U.S. Ninth Circuit Court of Appeals ruled that the hundreds being held at Guantanamo Bay have the right to legal representation.
It was considering a suit brought by a California relative of a Libyan being held in Cuba.
That decision "carries much less wallop," Mr. Greenberger said, noting that the often-overturned San Francisco court is widely considered the most liberal in the United States.
Its 2-1 decision was also unusual in that the Supreme Court has already announced it will consider the legal status of Guantanamo Bay detainees. Nevertheless, the ruling's blunt language reflects the growing judicial unease over the sweeping powers the White House has assumed since 2001.
"We cannot simply accept the government's position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement," Judge Stephen Reinhardt wrote for the majority.
The Padilla decision is narrow in one sense -- he is the only American citizen so far who has been declared an "enemy combatant" after being arrested in the United States. But the court's Manhattan location gave the ruling a wider symbolism.
"As this court sits only a short distance from where the World Trade Center once stood," the judges in the majority wrote, "we are as keenly aware as anyone of the threat al-Qaeda poses to our country and of the responsibilities the President and law-enforcement officials bear for protecting the nation."
Other high-profile setbacks reflect the current assertiveness by courts from both sides of the political spectrum.
The U.S. government's case against Zacarias Moussaoui, the only person yet to be charged in connection with the Sept. 11 attacks, has been in trouble since a judge ruled that the government couldn't present evidence linking him to the suicide hijackings unless it allowed his lawyers to question al-Qaeda suspects held at Guantanamo Bay and elsewhere.
The U.S. Justice Department has appealed that ruling, but the trend is running against the government, especially when it comes to the fate of those held in Cuba who, legal advocates have noted, have fewer rights than captured Iraqi dictator Saddam Hussein.
Steven Kenny, a lawyer for Australian detainee David Hicks, said he believes that "Saddam Hussein is going to be afforded a fairer system of justice" than his client.
Mr. Kenny, the first civilian lawyer to visit a Guantanamo detainee under a deal struck between Canberra and Washington, said his access to Mr. Hicks has been "a small first step, but it is no substitute for a fair trial."
Yesterday, the U.S. Defence Department provided a lawyer to fellow Guantanamo detainee Salim Ahmen Hamdan. The Yemeni citizen and Mr. Hicks are among six detainees declared eligible for possible trial before a military commission. Among the 600 detainees at the base, they are the only two with lawyers.
With a report from David Agren
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