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Coming on the heels of today’s decision by the Second Circuit Court of Appeals in Padilla v. Rumsfeld, the Ninth Circuit has ruled that the executive branch may not indefinitely imprison foreign nationals at Guantanamo without charge and without providing them with the effective means to challenge their detention. The case is Gherebi v. Bush.

An excerpt from the majority opinion follows:

"We recognize that the process due 'enemy combatant' habeas petitioners may vary with the circumstances and are fully aware of the unprecedented challenges that affect the United States’ national security interests today, and we share the desire of all Americans to ensure that the Executive enjoys the necessary power and flexibility to prevent future terrorist attacks.

"However, even in times of national emergency–indeed, particularly in such times–it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike. Here, we simply cannot accept the government’s position that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement.

"We hold that no lawful policy or precedent supports such a counter-intuitive and undemocratic procedure, and that, contrary to the government’s contention, Johnson [Johnson v. Eisentrager, a 1950 Supreme Court decision relied upon by the government] neither requires nor authorizes it. In our view, the government’s position is inconsistent with fundamental tenets of American jurisprudence and raises most serious concerns under international law."

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