A US judge dealt a setback to the Bush administration and ruled yesterday that the Guantanamo Bay terrorism suspects can challenge their confinement and the procedures in their military tribunal review process are unconstitutional.
US District Judge Joyce Hens Green said the prisoners at the US military base at Guantanamo Bay in Cuba have constitutional protections under US law.
"The court concludes that the petitioners have stated valid claims under the Fifth Amendment to the United States Constitution and that the procedures implemented by the government to confirm that the petitioners are 'enemy combatants' subject to indefinite detention violate the petitioners' rights to due process of law," Ms Green wrote.
More than 540 suspects are being held at Guantanamo after being detained during the 2001 invasion of Afghanistan and in other operations in the US war on terrorism. They are al Qaeda suspects and accused Taliban fighters. The ruling pertained to only 50 detainees.
Bush administration attorneys argued the prisoners have no constitutional rights and their lawsuits challenging the conditions of their confinement and seeking their release must be dismissed.
The tribunals, formally called a military commission, at the base were authorised by President George W. Bush after the September 11, 2001, hijacked airliner attacks on the United States, but have been criticised by human rights groups as unfair to defendants.
At issue in the ruling was the July 7, 2004, order by Deputy Defense Secretary Paul Wolfowitz creating a military tribunal - called the Combatant Status Review Tribunal - to check the status of each Guantanamo detainee as an "enemy combatant".
The procedures used for the tribunals "are unconstitutional for failing to comport with the requirements of due process," Ms Green concluded.
She said the procedures failed to give the detainees access to material evidence and failed to let lawyers help them when the government refused to disclose classified information. The main part of her ruling held the suspects can challenge their confinement and rejected the government's position that all the cases must be dismissed.
"Of course, it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected 'enemy combatants' at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees," Ms Green said.
"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years," Ms Green said.
"In sum, there can be no question that the Fifth Amendment right asserted by the Guantanamo detainees in this litigation - the right not to be deprived of liberty without due process of law - is one of the most fundamental rights recognised by the US Constitution," she said.
Ms Green also ruled that some of the suspects have brought valid claims under the Geneva Convention, the international treaty protecting the rights of prisoners of war.
A group of attorneys representing some of the suspects hailed the ruling. "Now it's time for this administration to act," they said in a statement. "Today's decision is a momentous victory for the rule of law, for human rights, and for our democracy."
Ms Green's 75-page opinion was the unclassified version and stemmed from 11 cases involving Guantanamo prisoners.
Her ruling probably will not be the final word on the issue. A different federal judge in Washington, DC, on January 19 dismissed the cases of seven Guantanamo prisoners on the grounds they had no recognizable constitutional rights and were subject to the military review process.
The cases could be appealed to the US appeals court, and then ultimately to the US Supreme Court.