updated 9/8/2005 7:57:49 AM ET 2005-09-08T11:57:49

A federal appeals court on Thursday questioned the Bush administration’s operations at Guantanamo Bay, where almost all prisoners were categorized by military tribunals as enemy combatants.

The two hours of arguments were in sharp contrast to those of nearly three years ago when the appeals court suggested that the prisoners at Guantanamo Bay were not entitled to have access to the U.S. courts, and subsequently ruled against them. The U.S. Supreme Court reversed that decision a year ago.

On Thursday, the court suggested the judiciary might have the legal authority to become involved in reviewing the tribunal procedures.

“There is nothing in the habeas statute that requires us to defer to a military tribunal,” said Appeals Judge A. Raymond Randolph, an appointee of President Bush’s father.

Randolph was on the panel in 2003 that rejected the prisoners’ plea for access to U.S. courts. The other judges on the current panel are David Sentelle, an appointee of President Reagan, and Judith Rogers, an appointee of President Clinton.

Question of lawful detention
Deputy Assistant Attorney General Gregory Katsas outlined the Bush administration’s position that the detainees have no Fifth Amendment right to due process because they are aliens held outside the sovereign territory of the United States.

But “there’s still the question of whether they are lawfully detained,” said Randolph. Randolph pointed out that detainees are asserting that they have no connection to the Sept. 11 terrorist attacks or to al-Qaida.

Katsas said the prisoners are afforded many rights by the tribunals, which ruled that all but 38 of 596 detainees were enemy combatants and were not entitled to prisoner-of-war protections under the Geneva Conventions.

The detainees are not allowed to have legal representation before the tribunals and cannot see classified information being used to categorize them as enemy combatants.

Court skeptical of defense argument
While questioning the government closely, the court seemed skeptical of arguments by the detainees’ lawyers that U.S. courts have authority to become deeply enmeshed in reviewing the tribunal process.

The judges said that last year’s Supreme Court ruling was on the question of jurisdiction, meaning that it was opening the U.S. courts to the prisoners without specifying the extent to which courts could involve themselves in prisoner issues.

Jurisdiction was “the beginning, the middle and the end” of the Supreme Court’s decision, said Rogers.

The detainees’ lawyers pointed to a footnote in last year’s Supreme Court opinion that said their complaints “unquestionably describe custody in violation of the Constitution or laws or treaties of the United States.”

Evidence of prisoner abuse at Guantanamo Bay has put the administration on the defensive and the government is trying to deal with the problem by downsizing the prison camp, returning many of the prisoners to their home countries.

Government hunkers down
In the meantime, the government has dug in for a protracted legal battle, defending the course it set in late 2001 with President Bush’s declaration that all suspected terrorists are enemy combatants rather than POWs.

After last year’s Supreme Court ruling, the Pentagon hurriedly set up the tribunals of U.S. military officers who reviewed the prisoners’ status.

Lower court judges are divided on the detainee procedures at Guantanamo Bay. U.S. District Judge Joyce Hens Green ruled that the tribunal hearings are unconstitutional. U.S. District Judge Richard Leon threw out a lawsuit by some of the detainees, saying the place for them to challenge the procedures is before the U.S. military, not in civilian courts.

The Pentagon says it is holding 505 prisoners at the Guantanamo Bay prison compound. Many were captured in Afghanistan in the months following the U.S. invasion in October 2001, and some have been there since the detention compound was opened in January 2002.

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