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The Bush administration must let foreign terror suspects challenge their confinement in U.S. courts, a judge said Monday in a ruling that found unconstitutional the hearing system set up by the Pentagon. U.S. District Judge Joyce Hens Green also raised concerns about whether detainees have been tortured during interrogations. Judges, she said, should make sure people are not detained indefinitely based on coerced and unreliable information. Foreigners from about 40 different countries have been held at the U.S. Navy base in Guantanamo Bay, Cuba — some for more than three years — without being charged with any crimes. They were mainly swept up in the U.S.-led war in Afghanistan. The government contends the prisoners are dangerous “enemy combatants” who, because they are foreigners, are not entitled to the same constitutional protections as Americans. Judges are trying to sort out detainee rights following a landmark Supreme Court ruling last summer that federal courts are open to appeals on behalf of the foreigners. Green’s ruling conflicts with a decision about two weeks ago by another federal judge in the same court who considered a similar lawsuit brought by a different group of detainees. Judge Richard Leon found that while the Supreme Court gave detainees access to courts, it did not provide them the legal basis to try to win their freedom. Viet Dinh, a Georgetown Law School professor who worked on terrorism issues as an assistant to Attorney General John Ashcroft, said because the two decisions “are so stark, it’s more likely than not the Supreme Court will have to weigh in.” That would mean many more months of legal wrangling, including hearings at an appeals court. While the additional time lets the Bush administration continue holding people indefinitely, it also risks further angering other countries over the jailing of their citizens, said Scott Silliman, a former Air Force attorney and Duke University law professor. “The longer we detain hundreds of people at Guantanamo Bay, the longer that festers in the international community,” Silliman said. A Justice Department spokesman said they would appeal the ruling to protect the president’s long-standing detention powers that “are critical to the ongoing war on terrorism.” The spokesman said the department hoped to have a quick resolution. Green’s decision was a sharp, but courteous, rebuke of the government. “Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats,” she wrote, “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.” Hearings being held to determine if the prisoners are enemy combatants are unconstitutional, the judge said, because detainees are not represented by lawyers and are not told of some of the evidence against them — including some information that may have been obtained by torture or coercion. “Her opinion sends a message to the rest of the world that democracy is still here,” said Barbara Olshansky, an attorney with the New York-based Center for Constitutional Rights, which is representing detainees. Green, named to the bench by President Carter, was assigned to sort out issues in claims filed in federal court in Washington on behalf of about 50 detainees. Olshansky said more petitions are being filed this week. Leon, put on the bench by President Bush three years ago, declined to have his cases coordinated with others. He concluded that foreign citizens captured and detained outside the United States have no rights under the Constitution or international law. Green, however, said detainees may fight their imprisonment as a violation of their constitutional due process rights. And some Taliban fighters may be entitled to hearings to determine if they are prisoners of war, she said. The president is not authorized “to rule by fiat that an entire group of fighters” has few legal rights, she said in a 75-page decision that had sections blacked out because of security concerns. Under the military appeals process, detainees may challenge their status as enemy combatants at the review tribunals as well as at annual administrative hearings that determine whether they still pose a threat or have valuable intelligence. In addition, detainees may be subject to military trials although only four people have been charged with war crimes. U.S. District Judge James Robertson blocked the trials in November and ordered the military to come up with a fairer procedure. The government is appealing. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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