Federal Judge Calls Bush Policies on Detainees Unconstitutional

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WSHINGTON, Jan. 31 - A federal judge here ruled today that the Bush administration has been wrongly blocking terrorism suspects held in Cuba from fighting their detention, and that the review procedure set up to determine whether they are "enemy combatants" is inherently unfair and unconstitutional.

Judge Joyce Hens Green, who has been reviewing claims filed by several dozen detainees at the United States naval base at Guantánamo Bay, said the detainees were clearly entitled under a Supreme Court ruling last June to challenge the basis for their detention, despite administration arguments to the contrary.

"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 200 years," Judge Green wrote.

Judge Green's ruling clashes with one handed down on Jan. 19 by another federal judge, Richard J. Leon, who interpreted the Supreme Court ruling more narrowly in reviewing the cases of seven other detainees. Judge Green was appointed to the federal bench in 1979, during the Carter administration; Judge Leon was appointed by President Bush in 2002.

Both judges sit on the district court in the nation's capital, making it virtually certain that the Court of Appeals for the District of Columbia Circuit will be called upon to resolve the conflict. After that, the Supreme Court could yet again be asked to weigh the balance between individual liberties and national security, an issue that has assumed new urgency since the attacks of Sept. 11, 2001.

Judge Green found that the methods of the Combatant Status Review Tribunal, created under orders by Deputy Defense Secretary Paul Wolfowitz nine days after the June Supreme Court ruling to decide which prisoners deserved the "enemy combatant" label, were grossly unfair.

Notwithstanding the presence of "personal representatives" to assist the detainees in preparing their claims, "the procedures provided in the C.S.R.T. regulations fail to satisfy constitutional due process requirements in several respects," Judge Green determined.

Perhaps most fundamentally, Judge Green noted that because the government withholds some evidence as classified, detainees are not entitled to all the material that might bolster their cases.

The frustrations created by these situations illustrate an "inherent lack of fairness" and would be almost comical if they did not deal with such serious matters, she said.

Judge Green noted that the Bush administration had asserted that it has a right to detain prisoners captured in Afghanistan, Iraq and elsewhere practically indefinitely - that is, until it is determined that they are no longer a threat to the United States, or that the "war on terrorism" is over.

"Indeed, the government cannot even articulate at this moment how it will determine when the war on terrorism has ended," she wrote. "The government has conceded that the war could last several generations, thereby making it possible, if not likely, that 'enemy combatants' will be subject to terms of life imprisonment at Guantánamo Bay."

Judge Green said nothing in her opinion "should be interpreted to require the immediate release of any detainee." But she said the present system, in which a detainee who has not even been charged with a specific crime could be in captivity longer than a criminal defendant who has been tried and convicted, cannot stand without substantial changes.