No Movement

Despite Ruling, Detainee Cases Facing Delays

By WILLIAM GLABERSON
Published: October 4, 2008
When the Supreme Court ruled in June that detainees at Guantánamo had the right to challenge their detention in federal court, the justices said that after more than six years of legal wrangling the prisoners should have their cases heard quickly because “the costs of delay can no longer be borne by those who are held in custody.”

But nearly four months later, as the Bush administration has opened a new defense of its detention policies in federal court, none of the scores of cases brought by detainees has been resolved by any judge.

Since the Supreme Court issued its ruling, lawyers for most of the 255 detainees in Guantánamo Bay, Cuba, have pressed ahead with habeas corpus lawsuits, yet most of those cases have been delayed by battles over issues like whether some court sessions will be held in secret, whether detainees can attend and what level of proof will justify detention.

Some of the arguments made by the Justice Department appear to challenge the Supreme Court’s conclusion that the federal courts have a role in deciding the fate of the detainees. One Bush administration argument asserts that only military officials — not federal judges — have the power to decide how to conclude wartime detentions.

Officials and lawyers inside and outside of the government say the new legal confrontation suggests that the Bush administration will most likely continue its defense of the detention camp until the end of President Bush’s term and is not likely to close the camp, as administration officials have said they would like to do.

“The legal issues that are being raised by the administration are going to take longer than the remaining time of the administration” to resolve, said Vijay Padmanabhan, an assistant professor at Cardozo Law School who was until July a State Department lawyer with responsibility for detainee issues.

“It is part of a broader strategy,” Mr. Padmanabhan added, “which is not to make difficult decisions about Guantánamo and leave it to the next president.”

Detainees’ advocates say that the administration is using the legal battle to delay judicial review of its evidence, while government lawyers argue that the cases are moving rapidly considering that they are unprecedented.

A Justice Department spokesman, Erik Ablin, said the government was working toward quick hearings for detainees, but was determined to take every precaution to avoid having dangerous people released. He added that “it is certainly the government’s goal to detain enemy combatants who are deemed a threat to the United States.”

Habeas corpus suits, which have their root in centuries-old English law, are generally streamlined proceedings for prisoners to force officials to explain why they are being held. The Guantánamo cases permitted by the Supreme Court’s ruling, Boumediene v. Bush, are to review the government’s reasons for holding the men as enemy combatants.

The military’s enemy combatant hearings, which the administration says permit indefinite detention, are separate from the Pentagon’s effort to prosecute some detainees in military commission trials.

A first test of a judge’s power in a federal habeas case may come on Tuesday during arguments in a case involving 17 detainees who claim a right to immediate release. The path to court has been slow for the habeas cases, and most seem unlikely to reach resolution until well into the next president’s administration, lawyers say. In some cases, government lawyers are adding new grounds for holding the men, supplementing or replacing the accusations made during Guantánamo hearings four years ago.

Lawyers say some of the government’s arguments could create grounds for years of new appeals by the Justice Department.

Many of the hurdles to moving the cases to court have been practical ones, including an initial shortage of Justice Department lawyers and the need to develop procedures for intelligence agencies to review classified evidence.

In August, Justice Department lawyers told the United States District Court in Washington that they could not meet their own deadline for providing initial responses to the cases. “The task has proven even more difficult than originally envisioned,” said a Justice Department filing.

The new schedule called for initial responses to 50 cases a month beginning in September. As a result, challenges by some detainees would not begin to move in the courts until January, the Bush administration’s last month in office.

Mr. Ablin, the Justice Department spokesman, said accusations against detainees might need to be updated because of the “changed legal landscape” and because intelligence collection might have changed what is known about detainees.

“It would be irresponsible,” he said, “not to update the courts with additional information gained over the past several years” that proved links to terrorism.

The government is relying extensively on classified information. That is quite likely to raise defense questions about how detainees can defend themselves since they are not permitted to see much of the evidence against them — long a contentious issue in the military’s hearings at Guantánamo Bay.

“Time is on their side,” Matthew J. MacLean, a Washington lawyer for four Kuwaiti detainees, said of the government. “Every day of delay is one more day our clients are in prison without a hearing.”

The habeas case scheduled for a federal court hearing on Tuesday involves 17 Guantánamo detainees who are ethnic Uighurs, a restive Muslim minority in western China.

In a separate case that was under way before the Supreme Court ruling in June, federal appeals judges issued a decision this summer that ridiculed as inadequate the Pentagon’s secret evidence for holding one of the Uighurs, Huzaifa Parhat, a former fruit peddler who said he had gone to Afghanistan to escape China.

Since then, the Pentagon has conceded that it would “serve no useful purpose” to continue to try to prove that any of the 17 Uighurs were ever enemy combatants.

The Uighurs say they have never been enemies of the United States, though they were in Afghanistan in 2002, where they were detained. They say they would be persecuted or killed if they were returned to China. The Bush administration says it has failed to find another country willing to accept them.

On Tuesday, a federal district judge, Ricardo M. Urbina, is to hear an urgent claim by lawyers for the Uighurs, that they should be released immediately into the United States since they are no longer considered enemy combatants.

The government argues that they should be held at Guantánamo until another country can be found to accept them. In filings, the Justice Department lawyers make expansive arguments that, while Judge Urbina can hear the Uighurs’ case, he cannot order their release. The judiciary “simply has no authority” to release the Uighurs into the United States, one filing said.

The Justice Department said the government’s executive branch, not the judicial branch, has the authority to conclude military detentions, as it has in prior wars. It noted that in World War II “no court ever questioned that it was solely for the political branches — not the courts” to decide how Italian prisoners of war were handled.

P. Sabin Willett, one of the Uighurs’ lawyers, said such claims appeared to be laying the groundwork for government appeals in the event that a judge orders a detainee freed.

The first full court hearing examining the evidence in a habeas case — this one involving six detainees at the center of the Supreme Court’s June decision — is scheduled for Oct. 27. Still, hearings for the vast majority of the detainees are unscheduled.

The Supreme Court justices said in their June decision that the detainees were “entitled to a prompt” hearing, but did not specify how prompt.

Mr. Willett said that while “prompt” might be open to interpretation, “I think they meant more quickly than this.”