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Lost Rights

The military base at Guantanamo Bay provides U.S. jailers safe harbor from interference by American courts, meaning the Bush administration can have its way in the treatment of foreign prisoners, a federal judge decided in Los Angeles last week.

”No federal court“ can review the government‘s conduct at the tin-and-wire facility known as Camp X-Ray, since the prisoners are being held outside the U.S. and because they have been designated ”enemies“ in the war on terror, U.S. District Judge A. Howard Matz ruled Thursday.

Judge Matz also held that an ad hoc coalition that brought the case in Los Angeles had no meaningful connection to the prisoners in Cuba, and therefore had no standing to sue in their name. USC law professor Erwin Chemerinsky, who argued the case before Judge Matz last week and also is a plaintiff in the suit, said his group will appeal.

The decision leaves little likelihood there will be an independent review of the U.S. treatment of nearly 300 men jailed at Guantanamo, most of whom have been held there since early January. Judge Matz acknowledged that the prisoners shipped to Cuba from Afghanistan are entitled to legal protection, but said those rights should be asserted through the Geneva Convention and other treaties, and not through the courts.

The Bush administration contends that none of its captives qualify as prisoners of war, and has rebuffed formal appeals by severalhumanitarian organizations. The Geneva Convention requires that the formal status of prisoners be determined by ”a competent tribunal.“ The treaty limits the interrogation of prisoners of war, and requires that POWs be returned home once hostilities have ceased.

In a strongly worded 24-page opinion, Matz made it clear that since the prisoners were taken in ”combat operations,“ they would receive only the most limited constitutional protection. Matz cited a 1950 Supreme Court decision that found that ”Such trials would hamper the war effort.“

”It would be difficult to devise a more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission“ to then sue in civil court, the Supreme Court said. That would ”divert his attention from the military offensive abroad to the legal defensive at home.“

Chemerinsky contended that the status of the prisoners changed when they were dispatched to Cuba, however, since the base at Guantanamo is, for all practical purposes, U.S. territory. ”If the government had left the prisoners in Afghanistan, we wouldn’t be here,“ Chemerinsky argued Thursday. Matz responded in court that Cuba remains ”sovereign“ over Guantanamo, as the 1903 lease of the base provides, and said he would not venture to interpret ”the nuanced language of diplomacy.“

Chemerinsky had to make the arguments last week because Stephen Yagman, the attorney who filed the suit and who pulled together the eclectic plaintiff coalition of 17 lawyers, academics and clergy, was snowbound in Colorado and could not be present.

That may have been just as well for the coalition. The case was delayed for a week to allow another judge to consider Yagman‘s challenge that Matz should not hear the case because his son is a prosecutor in the U.S. Attorney’s Office in Los Angeles. In his brief, Yagman specifically excoriated the lawyers in that office as a ”not-so-intrepid flock of government gulls and toadies.“

During the hearing last week, Judge Matz responded directly, questioning the level of ”invective“ in Yagman‘s legal filings. He also took the opportunity to criticize the coalition generally in his written ruling. Observing that no member had even attempted to make contact with any individuals held at Camp X-Ray, Matz wrote, ”Common sense suggests that something is seriously awry“ with the coalition’s claim to represent the prisoners.

Allowing the suit to go forward ”would invite well-meaning proponents of numerous assorted ‘causes’ to bring lawsuits on behalf of unwitting strangers,“ Matz wrote.

But if Yagman failed to endear himself to the court, he did take the opportunity to lodge a blistering critique of the war effort and the Bush administration. ”Now is a sad time in American history,“ Yagman wrote, ”a time when bad people have strong urges to let their ends justify their means.“

Always a creative legal strategist, Yagman invoked the Rolling Stones‘ ”Sympathy for the Devil“ to find language describing ”evil,“ and suggested that ”Today, our bold American, warmongering, macho and swaggering government are in need of some restraint.“ That restraint, Yagman said, should be the federal judiciary. ”Some federal court must have jurisdiction of this petition or very serious constitutional crises will have appeared,“ he argued.

By comparison, Judge Matz’s courtroom exchange with Chemerinsky was much more cordial. Matz addressed him with respect, commenting after argument on one constitutional question that ”You‘ve treated me to the strange sensation of being back in a bar-review course.“ But Chemerinsky was adamant afterward that he disputed the judge’s findings.

”On each of the issues raised by Judge Matz, the law is on our side, and we expect to win on appeal,“ Chemerinsky said.


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