The decision by the Ninth Circuit Court of Appeals relates only to a Libyan prisoner captured in Afghanistan. But it has implications for the treatment of all 660 detainees at Camp Delta, including nine Britons. It sets the stage for a momentous ruling next year by the Supreme Court, which has agreed to hear arguments on the status of those held in Guantanamo Bay.
In essence, the court will determine whether the US government has the right to keep people in a military prison, denying them legal representation and holding them for years without charges or trial.
Hours earlier, another federal appeals court dealt President George Bush a first blow by giving the government 30 days to release Jose Padilla, a US citizen, from the military prison where he has been held incommunicado since being arrested 18 months ago.
Mr Padilla was detained in June 2002 at O’Hare airport in Chicago as he arrived on a flight from Pakistan, to face accusations he was plotting a radioactive “dirty bomb” attack against a US city. He was designated an enemy combatant akin to the Guantanamo Bay detainees and sent to a naval brig in South Carolina.
But in a 2-1 decision, the US Second Circuit Court of Appeals ruled that a US president did not have the power to detain an American citizen seized on US soil as an enemy combatant. Only Congress had this authority, the ruling said.
“Presidential authority does not exist in a vacuum,” the court declared.
“Where, as here, the President’s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorisation is required.”
The ruling is a resounding, if belated, victory for US civil rights campaigners, who regard the Padilla case as the most egregious abuse of power by the Bush administration on the home front of the “war on terror”. Together with the Guantanamo ruling, it is a sign of a legal backlash against what critics say is a denial of basic human and legal rights, in breach of all judicial precedent here.
The Government now has two options. It can comply with the decision, and transfer Mr Padilla to the civilian judicial system, where criminal charges could be brought against him. Alternatively, it may lodge an appeal of its own. A Justice Department spokesman declined to comment last night but government prosecutors had argued he should not have access to lawyers because he posed a threat to national security, and his defence attorneys might interfere with his interrogation.