Friday, August 22, 2008


In late 2001, just weeks after the government first started taking prisoners in
the war on terrorism, Bush Administration officials chose Guantanamo Bay as the
place to hold those detainees in order to keep them beyond the reach of U.S. courts
and away from any terrorist activity. Now, more than six years and four Supreme
Court decisions later, the detainees for the first time will get a hearing in civilian
court on claims they are being held unlawfully; the first hearing is set to start
Oct. 6.

U.S. District Judge Richard J. Leon, who is working on what he calls a compressed
timetable, disclosed Thursday that he will hold the first habeas hearings on a day
that he said seems only fitting the first Monday in October. That, of course, is
the same day the Supreme Court returns to work after its summer recess, some four
months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a
constitutional right to pursue habeas challenges to their captivity.

The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and
includes five others from that country, all of whom had been living in Bosnia) is
back in District Court, before Judge Leon. Mostly by coincidence, the judge said
Thursday, that will be the case that comes up first for a week of hearings in October.

While 14 other District Court judges share the more than 200 Guantanamo habeas cases
now on file, it appears that the 24 cases in Leons court are moving on the fastest
track. The judge said, at a four-hour hearing Thursday, that he remains committed
to conducting hearings in these cases all 24 between now and Christmas. Decisions
on whether any detainee wins release could come soon after that.

None of the detainees, however, is likely to be in court personally for their hearings.
The judge said he had tentatively decided against ordering the Pentagon to bring
any of the detainees to mainland U.S. for the habeas cases; he cited very obvious
and difficult practical problems. That idea, he told detainees lawyers, was an
extremely hard sell.

He and the lawyers for both sides are exploring alternative ways for the captives
to take part: for example, by question-and-answer sessions under oath at Guantanamo
with videotapes shown in court, or by being linked to the courtroom through television
or telephone hookups.

Between now and next Wednesday, when he and the lawyers gather for an update on
planning, Judge Leon said he would issue a case management order laying out the
procedures for the habeas proceedings.

His tentative ruling against detainees in-person participation was one of a number
of issues on which the judge said he had pretty much made up my mind. He also indicated
he will rule that the detainees do not have any constitutional right to face witnesses
who have given adverse evidence about them or any right to call witnesses on their
own, that he would allow both sides to offer hearsay evidence that is, by individuals
not called as witness, and that he would insist on being notified in advance before
the Pentagon and State Department move out of Guantanamo any detainee in any of
his cases.

The judge also said he would issue an order requiring some higher-level State Department
official to file in his court a sworn statement on the efforts being made to get
other countries to take detainees so that they could be released from Guantanamo.

And he said he was pressing the Pentagon to take additional steps to allow the detainees
lawyers to more easily confer with their clients at Guantanamo, but he said he would
not go too far to intrude on operations of the Navy facility there: Its a military
base, he said, its not Vegas.

In something of a compromise among his tentative conclusions, the judge said he
would allow the cases to go forward under the federal habeas law a request by the
detainees that gives their lawyers some wider options but that he would not allow
procedures to become the equivalent of a full-scale criminal trial a request that
Justice Department lawyers pressed.

After laying out his tentative conclusions, the judge launched into the lengthy
hearing with lawyers from both sides on the most difficult and most disputed issues
he will have to decide on the framework of the habeas cases.

As has been obvious in written court filings, the two sides are far apart on the
detainees plea for a right to require the government to supply them added information
it may have about them, on their request for a requirement that the government be
forced to look for and hand over favorable evidence it has about them, on detainees
lawyers access and their clients access to information that is either classified
or is considered otherwise sensitive by the government, on whether the government
must satisfy a very strict test for justifying decisions to continue holding detainees,
and on whether the government must tell detainees lawyers before it shifts any prisoner
out of Guantanamo.

Meanwhile, down the corridor from Judge Leons courtroom, U.S. District Judge Ricardo
M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted
Chinese Muslim minority, the Uighurs, who are being held at Guantanamo. The Pentagon
has decided that it will no longer seek to prove that five of them should remain
designated as enemies, but the government has not yet found countries other than
China to take them.

Judge Urbina chastised the government for saying in court papers that it was constantly
reviewing its chances for releasing the Uighurs, and yet had not been able to decide
whether all of them should remain at Guantanamo under the label enemy combatant.

The judge also suggested that he may agree to a request by the Uighur detainees
lawyers that they be brought personally to the U.S., to appear in court to defend
themselves against accusations of terrorist links. Maybe that is an option, the
judge remarked.

Among the group whose cases are in Urbinas court is Huzaifa Parhat, who is seeking
release into the U.S. to live in the Washington, D.C., area temporarily while he
seeks to win his release from continued captivity. The Pentagon has decided he
is no longer an enemy combatant, but the government is fervently opposing any attempt
to bring detainees to the mainland.

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