[R-G] British Judges Criticise U.S. on the Prisoners Held at Guantánamo

[Ian Malcolm-Walker]

November 9, 2002
British Judges Criticize U.S. on the Prisoners Held at Guantánamo
By NEIL A. LEWIS

WASHINGTON, Nov. 8 — A panel of three senior British judges used 
extraordinary language in a ruling this week to criticize the United 
States' detention of prisoners from Afghanistan at Camp X-ray in Guantánamo 
Bay in Cuba.The three judges, ruling in a case involving a British subject 
held at Guantánamo, said detention of prisoners at the United States naval 
base there appeared to be a violation of both international law and the 
concept of habeas corpus developed centuries ago in England.Although the 
judges said the holding of prisoners at Guantánamo with no recourse to a 
court created an unacceptable "legal black hole," they acknowledged that 
they could do little about it. But it appeared evident that the judges were 
intent on sending a message to an appeals court in the United States that 
is considering the same issue.The panel, the rough equivalent of a federal 
appeals court in the United States, ruled in the case of Zumrati Juma, the 
mother of 23-year-old Feroz Abassi, who has been detained at Guantánamo for 
10 months. "What appears to us to be objectionable is that Mr. Abassi is 
subject to indefinite detention in territory over which the United States 
has exclusive control, with no opportunity to challenge the legitimacy of 
his detention before any court or tribunal," they said in an opinion 
written by Lord Phillips, the master of the rolls, one of Britain's most 
senior judicial posts."It may be the anxiety that we have expressed will be 
drawn to their attention," Lord Phillips wrote.Geoffrey Robertson, a 
prominent barrister and authority on human rights law, said in a telephone 
interview from London that the judges were clearly hoping to influence the 
pending case before the United States Court of Appeals for the District of 
Columbia."They were expressing that it is inconceivable for something like 
this to occur in the English system," Mr. Robertson said. Moreover, he said 
it was meant to show that the country that originated the writ of habeas 
corpus — which allows any imprisoned person to challenge a detention before 
some body — felt strongly about the issue.A three-judge panel of the United 
States appeals court is scheduled to hear arguments in the case on Dec. 2. 
The judges will hear an appeal of a ruling in July that gave a significant 
legal victory to the Bush administration.In that ruling, Judge Colleen 
Kollar-Kotelly said that the American naval base at Guantánamo was not 
formally part of the United States and, that as a result, the detainees did 
not have constitutional protections. Under well-established principles, 
even noncitizens have some constitutional protections once they are inside 
the United States.In dismissing the cases brought on behalf of two Britons, 
an Australian and several citizens of Kuwait, Judge Kollar-Kotelly said she 
did not believe that any court would have jurisdiction over the Guantánamo 
detainees. There are more than 600 prisoners now being held at the base, 
according to the Defense Department.Eugene R. Fidell, a Washington lawyer 
and an authority on military law, said the ruling from London was 
significant because the judges did not have to comment on the legality of 
the detention once they decided that the case was out of their 
jurisdiction. Instead, he said, they offered a view on how the writ of 
habeas corpus should apply in this case.In acknowledging that they could 
not issue any orders in the case, the British judges declined the request 
of Mr. Abassi's mother that they direct the British foreign secretary to 
make representations to Washington."There can be no direct remedy in this 
case," the opinion said. "The United States government is not before this 
court, and no order of this court could be binding on it."


Ian W Malcolm-Walker

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