Between the Lines Q&A

A weekly column featuring progressive viewpoints
on national and international issues
under-reported in mainstream media
for release Jan. 2, 2004

Federal Courts Challenge
President's Authority to Hold Terror Suspects
Without Due Process

Interview conducted by Scott Harris

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Contrary to international law, the Bush administration has held some 660 prisoners captured in Afghanistan, several who are juveniles, at the U.S. Navy's prison camp at Guantanamo Bay, Cuba without charge for up to 24 months. In June 2002, Attorney General John Ashcroft announced the arrest of Jose Padilla, a U.S. citizen, whom the government alleged was working with the al Qaeda terrorist network to explode a radioactive dirty bomb in an American city. Designating Padilla an enemy combatant, the White House has held him in a South Carolina Navy brig without charge, while denying him access to an attorney.

Since the Bush administration invoked executive powers denying due process to individuals suspected of engaging in terrorist activities, civil liberties activists have worked to overturn these policies in the courts. On Dec. 18, two federal appeals courts reviewing separate cases challenged the president's authority. The court in New York declared that the administration does not have the power to hold U.S. citizens indefinitely merely by branding them an enemy combatant. The appellate court in San Francisco ruled that holding prisoners of war without access to U.S legal protection was unconstitutional and a violation of international law.

Between The Lines' Scott Harris spoke with Ken Hurwitz, staff attorney with the Lawyers Committee on Human Rights, who assesses these recent federal court decisions and what's at stake in an expected review of the cases by the U.S. Supreme Court.

Ken Hurwitz: Basically, the message of both cases was that you can't just take people and lock them up by labeling them an enemy combatant or unlawful combatant without giving them any kind of process whatsoever to let them prove that they're not who you say they are. The Padilla case is in many ways the bottom line case because that one relates to a U.S. citizen and a U.S. citizen on U.S. territory. Had the court continued to support the government's position -- which is basically that the president can label someone an enemy combatant and then he has no more rights under the Constitution -- there would be no real backstop for anybody's rights, because anybody could be picked up off the street and the government, which has basically said that they don't have any duty at all to show the courts the basis on which they've made their determination.

The Salim Gherebi case is a little more complicated. That's the one in the Ninth Circuit in San Francisco and that is related to the Guantanamo detainees. Gherebi himself is a Libyan who was apparently picked up in Afghanistan. Now the executive branch of the government has been basically saying that what they've done in Guantanamo is they've taken prisoners of war, only not called them prisoners of war. And then they've said, but under the law of war, we're entitled to keep them indefinitely. What that misses, though, are a couple of things, and the first thing is that not everybody they've picked up has been in fact a combatant. There were strong indications and government officials have told some of the lawyers involved in these cases, unofficially, that there are at least several score of these people who are really just innocents, people who were caught in the wrong place at the wrong time. And the whole point that "everybody carries guns in Afghanistan" and the argument that people aren't wearing uniforms -- well, that proves too much, because what that proves is that everybody in Afghanistan can be arrested and that clearly can't be the case, because most of the people in Afghanistan were victims of the war.

Under the Geneva Conventions, which is the applicable law where there is a conflict, the provisions provide that there should be what they call a competent tribunal, that is to say an informal proceeding, but one with some rules in which evidence is presented, in which the detainee can make an argument to show that he isn't a combatant at all or that if he is a combatant, that's he's a lawful combatant and entitled to the privileges of a prisoner of war. By virtue of the fact that the government has denied all of the people that they've picked up in Afghanistan such a hearing, they've basically denied any process -- even the minimal due process due a prisoner who is picked up on a battlefield.

Finally, the most important thing is that it's not just battlefield detainees or even people who are not fighters, but were picked up near the battlefield, that we're talking about in Guantanamo. A number of people, the six people who were picked up, for example, in Bosnia and were basically kidnapped by the United States government against -- in violation of a Bosnian court order -- and were brought to Guantanamo. There were two people who were British residents who were living in the UK who were picked up in Gambia, and there are likely others who were picked up from nowhere near a battle zone. So there are lots of different types of people that are in Guantanamo and yet there's been no real formal effort to sort them out. So I think basically the message of the opinions, in short, in both cases, is wait a minute, you've got to give some kind of a roceeding so that people can have a chance to show who they are.

Between The Lines: The Bush administration says that we have to go through a separate route here, because we're engaged n a war against terrorism and we can't go through civilian courts where information will potentially get to our enemies and hurt our effort to thwart further attacks. How do you respond to the notion that we have to sacrifice our liberties in order to gain security?

Ken Hurwitz: Well, I mean first of all, we've had a much successful experience in this country in prosecuting people in the courts with regard to the 1993 World Trade Center bombing and with regard to even the domestic terrorism such as at Oklahoma City. Basically, there are mechanisms that have been worked out, there are perhaps some more that could be worked out that allow for the protection of information. I think it is largely an exaggerated cost that is provided to justify basically that they don't want people looking over their shoulders as to who they're interrogating and why.

Between The Lines: Both these case will likely now go to the Supreme Court. Has the court made any precedents in these types of cases that provide any clues as to how they may decide?

Ken Hurwitz: There's a whole industry of people who read the tea leaves with regard to the Supreme Court. It's very difficult to tell. I mean, what we can say is that they have surprised some of the conservative supporters and some of the very liberal critics. I do think that courts do listen to each other. I do think the Supreme Court listens to other courts in this country and listens to courts abroad.

Even among senior judicial figures -- very respected conservative jurists from countries that are our closest allies, particularly the United Kingdom, Australia, New Zealand, Canada -- there has been virtual unanimity of voices, that are saying basically, the United States has gone too far in basically reversing 50 years of development of human rights and civil liberties with regard to how it is treating the people that it labels terrorists without feeling it has to prove them. So I'm cautiously optimistic that the Supreme Court will be aware of posterity and therefore aware of the judgment of history when it looks at these cases.

Contact the Lawyers Committee on Human Rights by calling (212) 845-5200 or visit their website at

Related links on our website at for week ending 1/2/04

"Jose Padilla--A Constitutional Challenge for Us All"
"Rights, Liberties Groups Hail Court Defeats For Bush Anti-Terror Efforts"
"Setback For Ashcroft's Radical Agenda"
"Bush, With Stealth, Signs PATRIOT ACT Expansion Into Law"


Scott Harris is executive producer of Between The Lines, which can be heard on over 35 radio stations. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines, for the week ending Jan. 2, 2004. Between The Lines Q&A is compiled by Anna Manzo and Scott Harris.

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