Made In The U.S.A.

Guantanamo Bay. Cuba. AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com

If you were wondering these dark days what the value of U.S. citizenship really means, you need wonder no more. A pair of important court rulings Tuesday in the war on terror make it perfectly clear that American citizenship means an awful lot, at least in the world of the law.

If you are a U.S. citizen, like the dirty-bomb suspect Jose Padilla, you get a federal judge fighting for at least one of your basic constitutional rights. If you are not a U.S. citizen, like all of those folks now detained by the U.S. military at Guantanamo Bay, Cuba, you can't even make it into court on the merits of your claims that you are being held improperly.

There are many different legal reasons why the Padilla and Gitmo lawsuits took such different turns this week. But at the core the citizenship of the parties involved made the biggest difference.

In the Padilla case, what is remarkable about U.S. District Judge Michael B. Mukasey's ruling is the exasperation he displayed in making it. As he did back in December, the judge again ordered the government to give Padilla access to his attorneys so he may, at a minimum, challenge his classification and detention as an "enemy combatant." Only this time, Judge Mukasey declared that he would brook no further delay by the government either in making Padilla available to his attorneys or appealing his decision to the 2nd U.S. Circuit Court of Appeals.

Fish or cut bait, the judge told the feds, and in doing so essentially rejected the argument offered by the director of the Defense Intelligence Agency that any contact between Padilla and his counsel would "substantially harm our national security interests." The government had argued that Padilla would stop talking if he thought he could delay his interrogators by bringing them into court. Judge Mukasey countered that it is just as likely that Padilla would talk sooner if and when his legal avenues were exhausted — a result, the judge speculated, the government itself was delaying by refusing him access to his lawyers.

"The advantages to the government of accelerating the date that the prospect of certain confinement closes in on Padilla," Judge Mukasey wrote, "actually outweigh the advantages of simply waiting until he gives up hope on his own." So the judge told federal attorneys to get moving and let Padilla properly challenge his status. Now, legally speaking, Padilla still is in a pretty bad place. He's being held without charges and it is far from certain that any judge will be willing to force the executive branch either to charge him or turn him loose. But his citizenship at least has gotten him a court ruling that gives him access to his attorney and therefore an opportunity to try to prove the government wrong.

The same cannot be said for the detainees currently held at Gitmo. Just a few hours after Padilla got his tiny bit of good news, the D.C. Circuit Court of Appeals rejected an argument made by the friends and family of 16 detainees that they are entitled to seek redress in our federal courts. On behalf of 12 Kuwaiti nationals, two Australians, and two British detainees, these "next friends" had argued that the courts, not the military, ought to decide the legality of the detention of the men, each of whom was captured abroad during the fighting in Afghanistan. Not so fast, the federal appeals court ruled.

The detainees, the court explained, are non-citizen "aliens" who were "captured during military operations...in a foreign country" who are now still "abroad" and "in the custody of the American military" without ever having "had any presence in the United States." That status puts them, the judges unanimously explained, within the shadow of a 1950 Supreme Court case that arose out of the World War II capture of German soldiers caught fighting in China with Japanese soldiers in the summer of 1945.

Citing that case, Johnson v. Eisentrager, the appeals judges wrote: "if the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty." The court was able to come to this conclusion by affirming the legal precedent that holds that Guantanamo Bay is not the sovereign territory of the United States. And it's a decision that isn't likely to be heard, much less overruled, by the United States Supreme Court, which doesn't appear to have much incentive to re-work its own precedent in order to save the detainees.

If these detainees are going to ever get their detention re-evaluated, that re-evaluation is either going to come through political and diplomatic circles or through the military. I could see Britain or Australia pushing for answers for its citizens now in Gitmo. And I can certainly see the Kuwaitis twisting the arms of their American colleagues. I even can see plenty of incentive for the U.S. military itself to release anyone now held at Gitmo if that person isn't deemed to pose a future security threat. Why in the world would U.S. officials knowingly spend the time and money keeping captive anyone they don't truly think could be a problem?

So Padilla, the American, has a legal leg up now to continue his legal fight. And the detainees, the non-citizens, have no courthouse door they can go to. In one day this week, the justice system spoke very loudly and very clearly about what it means to have U.S. citizenship and, just as importantly, what it means when you don't.

By Andrew Cohen
  • Lloyd Vries

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