Detainee hearings start Oct. 6
on Aug 21, 2008 at 10:12 pm
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 Leon’s 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: “It’s a military base,” he said, “it’s 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 Leon’s 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 Urbina’s 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.
