President George W. Bush's broad assertions of power in his war on terrorism are under assault by US judges who have rejected his indefinite imprisonment of enemy combatants and the domestic spying program.
A pair of recent rulings, one from military judges and the other from a US appeals court, delivered new legal setbacks for Bush's tactics in dealing with terrorism suspects held at the US naval base at Guantanamo Bay, Cuba, or in the United States.
"In case after case, this nation's judicial branch has told the administration that it may not trample on fundamental rights in the name of national security," said Hina Shamsi of the New York-based group Human Rights First.
A federal appeals court panel in Virginia ruled 2-1 on Monday that Bush could not declare civilians in this country to be enemy combatants and have the military hold them indefinitely.
The ruling said Bush overstepped his authority in the case of a Qatari national and suspected al Qaeda operative, Ali Saleh Kahlah al-Marri, who has been held in military custody for four years without any charges.
Human rights and civil liberties groups said the decision underscored the importance of judicial review as a check on Bush's executive power.
"Once again, the courts have stepped in to rein in the executive and restore the rule of law," said Jennifer Daskal, US advocacy director of Human Rights Watch.
The ruling came a week after military judges dismissed all charges against the only two Guantanamo prisoners facing trial, saying they had been designated only as "enemy combatants," and not "unlawful enemy combatants" as required by a 2006 law.
The decisions added to a number of earlier rulings that went against the Bush administration over the past three years. Last August, a federal judge in Detroit ruled that Bush's domestic spying program, adopted after the September 11 attacks, violated free-speech rights, protections against unreasonable searches and the constitutional check on the power of the presidency.
Five months later, the administration abandoned the program and agreed to get court approval for the electronic surveillance. It still has appealed the ruling to a US appeals court, which has yet to decide.
The US Supreme Court in three rulings since 2004 has rejected Bush's position in terrorism cases, including the most recent one a year ago that struck down as illegal his initial system of military trials for Guantanamo prisoners.
Bush administration officials predicted the al-Marri decision would be overturned by the full appeals court, which is controlled by conservative judges and has ruled for the administration in at least two other terrorism cases.
'LAW IS ON OUR SIDE'
"We think the law is on our side in this one," one US official said. The official and others said al-Marri trained at an al Qaeda camp in Afghanistan during the 1990s and entered the United States just before the September 11 attacks as a "sleeper agent."
The officials also expressed confidence the two Guantanamo trials ultimately would go forward. The Pentagon has asked the military judges to reconsider their decisions. If the judges refuse, the administration next could appeal to a military court, they said.
The officials point to some significant wins for Bush's terrorism policies. A US appeals court in February upheld the law that Bush pushed through the then-Republican-led Congress last year that took away the right of the Guantanamo prisoners to challenge their confinement before US federal judges.
That law also created the new system of military trials for Guantanamo prisoners to replace the one struck down by the Supreme Court. With Democrats now in control of Congress, legislation is moving forward that would restore the rights of the approximately 380 prisoners now at Guantanamo to challenge their imprisonment.
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