Detainees' lawyers argue they should be charged or released

WASHINGTON -- Declaring that foreigners captured in the war on terrorism have rights, attorneys for detainees held without charges at Guantanamo Bay Naval Base pleaded for help Monday from a skeptical federal appeals court.

Sixteen people from Australia, Britain and Kuwait, some captive for more than a year, are seeking "the most modest of rights ... we want access to an impartial tribunal," said attorney Thomas Wilner.

The three-judge panel questioned whether it has authority to intervene and whether the prisoners jailed by the U.S. military at Guantanamo Bay, Cuba, are entitled to some form of due process. Two of the three judges ruled three years ago that a foreign entity without property or presence in the United States has no constitutional rights.

A. Raymond Randolph, appointed to the appeals court by President Bush's father, is one of the judges hearing the Guantanamo case, as is Stephen Williams, who was appointed during the Reagan administration. Both were part of the panel in the case three years ago. The third judge hearing the detainees' case is Merrick Garland, a Clinton appointee.

'Utterly outside the law'

The United States has been involved in many wars in its history, "but this is the first time we have sacrificed the rule of law," said attorney Joe Margulies, who is representing 12 Kuwaitis.

"The government says no court in the world may hear from my clients," Margulies said. "Guantanamo is unique. It is utterly outside the law."

The detainees' families have gone to the appeals court because U.S. District Judge Colleen Kollar-Kotelly ruled four months ago that the Guantanamo prisoners are not in the United States and thus do not fall under the jurisdiction of federal courts.

Seized by the United States in the Spanish-American War and leased from Cuba for the past century, Guantanamo is a 45-square-mile area on the southeastern tip of Cuba now holding nearly 600 detainees from more than 40 countries, including about 60 Pakistanis and some 100 Saudi Arabians. None of the detainees have been allowed to see their families or to have access to attorneys. A handful of Afghan and Pakistani detainees have been sent home from Guantanamo after being cleared of terrorist suspicions.

Those in the court case were picked up in Afghanistan and Pakistan following the Sept. 11 attacks.

The detainees' situation is "identical" to that of German nationals held in Landsberg prison in Germany who were denied access to U.S. courts in a 1950 Supreme Court ruling, said Deputy Solicitor General Paul Clement.

Unlike the detainees at Guantanamo, the German nationals were charged and convicted before a U.S. military tribunal, the lawyers for the Guantanamo detainees pointed out.

Two reasons for detention

The detainees are being held at Guantanamo Bay for two reasons -- to get them away from the battlefield and to facilitate intelligence gathering, said Clement. He said that investigators go back to the detainees for additional questions as the U.S. gathers more information from newly captured members of al-Qaida.

In arguments that lasted an hour and a half -- three times the scheduled 30 minutes -- the appeals judges pointed to one of their own rulings in 1999 that related to terrorism. In it, the appeals court ruled that it was not for the judges to decide whether organizations hostile to the governments of Iran and Sri Lanka committed terrorist acts. The groups were seeking to be removed from the State Department's list of terrorist organizations.