Washington Post
February 20, 2002


Detention of 3 Men in Cuba Disputed: Suit Seeks Freedom for Terror Suspects


By John Mintz

Attorneys for the families of three suspected terrorists imprisoned at the U.S. detention facility in Guantanamo Bay, Cuba, yesterday asked a federal judge to free the men or hold a hearing into whether they should be let go.

The legal filing in U.S. District Court names President Bush and Defense Secretary Donald H. Rumsfeld as "respondents," saying they have violated the three men's constitutional rights, as well as the rights of 297 others being held without charges in Cuba.

The legal maneuver on behalf of one Australian and two Britons is the first of what some attorneys expect will be a number of lawsuits filed by relatives of detainees at the U.S. naval base in Cuba. It calls into question the government's policy of detaining al Qaeda and Taliban fighters without criminal charges.

"There are few principles more firmly established in our law than the prohibition on indefinite detention," said Joseph Margulies, a Minneapolis lawyer representing detainee David Hicks, 26, an Australian captured in Afghanistan. "This case presents a challenge as to whether we jettison the rule of law because we are angry."

Legal experts are divided about whether the lawsuit will succeed in winning freedom for Hicks and the two British citizens, Shafiq Rasul and Asif Iqbal, or even in persuading a judge to hold a hearing on their detention.

The filing is a petition for writ of habeas corpus, a request by a person in custody for a court to examine the fairness of his imprisonment.

A spokesman for the Justice Department, which would represent Bush and Rumsfeld, declined to comment on the lawsuit.

Legal specialists said the petition stands a better chance of succeeding than a similar habeas corpus case filed last month in Los Angeles on behalf of all the detainees. The judge in that case said he had "grave doubts" that it could succeed.

International lawyers cited two differences between the Washington and Los Angeles petitions.

The Los Angeles attorneys acted on their own, without a client in Cuba, whereas the lawyers here are retained by the three detainees' families. The relatives of Hicks and Rasul say the two men asked for lawyers in communications transmitted by the Red Cross.

Filing the case in Washington also improves its chances of being heard, experts said, because the president, who signed an order in November establishing the government's right to detain suspected terrorists, lives and works here.

"This case has a somewhat stronger chance of getting a judge's attention than the one in L.A.," said Michael Noone, an international law expert at Catholic University. "As to whether it will succeed, I can't tell."

Government attorneys have said that because Guantanamo Bay Naval Base is on Cuban soil and is leased to the United States, it is not part of a U.S. judicial district and thus private lawyers are restricted in filing suit here over conditions there. In addition, U.S. lawyers cite a 1950 Supreme Court decision establishing that foreign belligerents cannot file habeas corpus demands outside the United States.

The administration also has refused to grant the detainees prisoner of war status or to apply the Geneva Conventions to imprisoned members of the al Qaeda terrorist network.

"The argument that people held in Guantanamo Bay have no rights means [the government] could just take out a gun and shoot them, which is clearly inappropriate," said Clive Stafford Smith, a Louisiana lawyer representing the two British captives.

Iqbal, 20, and Rasul, 24, are friends from the British city of Tipton. Iqbal's parents said their son had traveled to Pakistan in October for an arranged marriage and then disappeared. Rasul called his family in October to say he was traveling around Pakistan before taking a computer course there. Both were arrested with al Qaeda forces.

In an unrelated development, the American Civil Liberties Union yesterday questioned federal prosecutors' right to intervene in a suit in New Jersey state court. The organization is seeking to obtain the names of immigrants detained at two New Jersey jails since the Sept. 11 attacks.

Staff writer Steve Fainaru contributed to this report.

Copyright 2002, Washington Post Company. All rights reserved.

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