Prometheus 6   

The pattern holds...sort of

During times of war, the USofA has traditionally not given a rats' ass about preserving the civil rights of its citizens, only to reverse all the crap inflicted on the population after the war is over. And honestly, on a certain level I can get with that. But a "war metaphor" is NOT at that level.

WASHINGTON, Dec. 18 — The broad presidential powers invoked by the Bush administration after Sept. 11, 2001, to detain suspected terrorists outside the civilian court system is now being challenged by the federal courts, the very branch of the government the White House hoped to circumvent.

The two separate appellate court rulings on Thursday swept away crucial parts of the administration's legal strategy to handle terrorist suspects outside the criminal justice system and incarcerate them indefinitely without access to lawyers or to the evidence against them.

The rulings are by no means a final judicial verdict on the administration's approach. But the rulings demonstrated powerfully the willingness of the courts to challenge the administration's procedures, which were put in place without Congressional approval in the tumultuous months that followed the Sept. 11 attacks.

The issue of whether the administration has gone too far will not be decided definitively until the cases reach the Supreme Court. The court has agreed to decide whether detainees at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open–ended detention.

Nevertheless, in one sense the administration has already lost an important point by the courts' willingness to ignore assertions that the issues are exclusively within the discretion of the executive branch.

Kenneth Roth, executive director of Human Rights Watch, said the two decisions were a serious setback for the administration's legal approach.

"The Padilla decision emphasized the Bush administration's unilateralism versus Congress," Mr. Roth said, referring to an appellate court ruling on Thursday in the case of a United States citizen, Jose Padilla, arrested on American soil on suspicion of terrorism.

"The Ninth Circuit decision said that you can't create a legal black hole in territory controlled by the United States," Mr. Roth added, referring to a second ruling on Thursday related to noncitizens captured in the Afghan war and detained at a naval base in Guantánamo Bay.

"Both attacked the Bush administration's view that a war metaphor can justify restrictions on basic criminal justice rights away from a traditional battlefield," Mr. Roth said.

The rulings suggested the possibility that the administration could be forced to redefine its strategy, possibly by seeking Congressional authorization or by returning to established legal procedures to deal with suspected terrorists.

But on Thursday, administration officials gave no sign that they would retreat from their approach. "Actually these rulings are an aberration," said a senior Justice Department official. "The administration has been upheld time and time again."

The official cited rulings supporting presidential authority to freeze assets of organizations that help finance terrorists and allowing the government to close immigration hearings in cases related to Sept. 11.

The arrangement for detaining terrorist suspects was developed against a backdrop of fear as American military planners prepared for war in Afghanistan. Mr. Bush's legal advisers worried that if terror cases were tried in the existing civilian and military justice systems, prosecutors would be forced to give away too much information to terrorist enemies.

In criminal courts, defendants are entitled to lawyers, have a right to a speedy trial and must be advised of the evidence and witnesses against them – concessions that the Bush administration did not want to grant to combatants in a war with adversaries who recognized none of the traditional rules of combat.

In New York on Thursday, a federal appeals court opinion in the case of Mr. Padilla struck at the heart of that aggressive strategy. The panel's 2–to–1 opinion said that the president lacked the authority to exercise such broad coercive powers against American citizens without the consent of Congress.

Specifically, the judges attacked the government's designation of Mr. Padilla as an enemy combatant, a category of detainee that was created shortly after Sept. 11 to hold suspected terrorists without the rights that criminal suspects are routinely granted in the civilian court system.

Mr. Padilla has been identified as a lower–level Qaeda operative who entered the United States to plan an attack involving a so–called dirty bomb, which spews radiological material using conventional explosives.

Government officials have said that it was Abu Zubaydah, a senior Qaeda operative detained in an unknown location who provided the information that led to Mr. Padilla's arrest. Later, officials said that Mr. Padilla was dispatched to the United States by Khalid Sheik Mohammed, another top Qaeda operational leader, who was also captured earlier this year.

The officials said that in a criminal trial they would be forced to disclose information about Mr. Padilla that Mr. Zubaydah or Mr. Mohammed had provided to interrogators, a step that intelligence analysts say would pose a risk to national security.

In the case in San Francisco, a 2–to–1 panel said on Thursday that the detention of 660 noncitizens at Guantánamo Bay without the protection of the American legal system was unconstitutional and a violation of international law.