Team Infidel
Forum Spin Doctor
New York Times
October 15, 2007
Pg. 16
By William Glaberson
In the sixth year of detention for many of the 330 men held at Guantánamo Bay, Cuba, Justice Department lawyers have raised the possibility that the government may hold new hearings for some detainees to decide whether they are being properly held.
The statement came in a filing made public late Friday in the federal appeals court in Washington. Detainees’ lawyers said officials appeared to be considering what several of the lawyers called a “massive” repeat of the military’s combatant-status hearings originally held in 2004 and 2005.
The hearings are held to decide whether detainees were “enemy combatants” who should be held at Guantánamo.
Conducting numerous new hearings would be an extraordinary change of course for the government in a long-running battle over the hearings, which have been criticized as arbitrary and illegitimate by critics of the Bush administration’s detention policies.
Detainees are not permitted lawyers at the hearings, cannot see much of the evidence against them and are seldom permitted to call witnesses.
The consideration of whether to hold a new round of hearings does not appear to reflect a change in the government’s view about their propriety. Instead, it would be a way for the government to fight off a recent court ruling in a case in which detainees have challenged their detention based on the first round of status review hearings.
Detainees’ lawyers said a decision to redo the hearings could delay those court challenges brought on behalf of the detainees, almost all of whom have been held for years without criminal charges.
A Pentagon spokesman, Cmdr. Jeffrey D. Gordon of the Navy, said military officials had recently decided to give one detainee a new combatant status hearing, but Commander Gordon said the court filing on Friday simply reflected that an assessment was under way.
“While discussions on a wide variety of detainee procedures continue within interagency circles,” Commander Gordon said, “no decisions have been made to redo Combatant Status Review Tribunals,” which are often referred to as C.S.R.T.’s.
The filing Friday in the case of one detainee said the government needed time to make a determination on whether to convene a new C.S.R.T., in that case and others.
The hearings have been the subject of withering attacks, including by two military hearing officers who have said that commanders had influenced their decisions and that evidence against the detainees was sometimes little more than anonymous accusations.
“The process was gravely flawed back in 2004,” said Joseph M. McMillan, a Seattle lawyer who represents a detainee, “and I think it would be even more flawed now.”
Repeating some of the earlier proceedings could also undercut the government’s position in a pivotal appeal now before the Supreme Court. In that case, the government is arguing that the combatant status hearings are rigorously fair and carefully conducted.
Detainees’ lawyers described the possibility of new hearings as a legal maneuver intended to help the Justice Department in what have become contentious challenges in the United States Court of Appeals for the District of Columbia Circuit.
In the appeals court, about 130 detainees are challenging the findings of their status hearings.
In those cases, the appeals court issued a ruling in July that directed the government to disclose virtually all of the information government agencies knew about the detainees when the military conducted the hearings in 2004 and 2005.
Justice Department lawyers have argued that the ruling would damage national security and was burdensome, partly because full records were not kept of what information was known about the detainees at the time of the original hearings. Holding new hearings could be a way to avoid the broad disclosure ordered by the court, lawyers said.
The separate Supreme Court case tests whether Congress had the authority to strip the courts of the power to hear habeas corpus cases by detainees, which would give the courts much broader powers than they have in reviewing the combatant status hearings.
In a recent Supreme Court brief, the Justice Department argued that the detainees had greater rights “than any other captured enemy combatants in the history of war.”
But Eric M. Freedman, a Hofstra law professor who has been a consultant to detainees’ lawyers, said discarding the original hearings after relying on them for nearly three years would damage that argument. Professor Freedman said it would show “obstruction, stonewalling, delay and absolute refusal to release people they cannot show any valid basis for holding.”
Last week The Associated Press reported that a hearing official at Guantánamo indicated a review of whether to conduct new hearings was under way.
“With all the outside eyes looking in at the process,” the official, Capt. Theodore Fessel Jr., was quoted as saying, “it’s forcing us to say, ‘O.K., did we take everything into consideration when we did the original Combatant Status Review Tribunals?’”
Commander Gordon said those comments were taken out of context.
In a decision on Oct. 3, the federal appeals panel declined a government request to reconsider its order to turn over the information on the detainees. But the panel added that the government had an alternative. The Pentagon could “convene a new C.S.R.T., taking care this time to retain all the government information.”
Erik Ablin, a Justice Department spokesman, said the filing on Friday indicated only “that we are considering our options.”
October 15, 2007
Pg. 16
By William Glaberson
In the sixth year of detention for many of the 330 men held at Guantánamo Bay, Cuba, Justice Department lawyers have raised the possibility that the government may hold new hearings for some detainees to decide whether they are being properly held.
The statement came in a filing made public late Friday in the federal appeals court in Washington. Detainees’ lawyers said officials appeared to be considering what several of the lawyers called a “massive” repeat of the military’s combatant-status hearings originally held in 2004 and 2005.
The hearings are held to decide whether detainees were “enemy combatants” who should be held at Guantánamo.
Conducting numerous new hearings would be an extraordinary change of course for the government in a long-running battle over the hearings, which have been criticized as arbitrary and illegitimate by critics of the Bush administration’s detention policies.
Detainees are not permitted lawyers at the hearings, cannot see much of the evidence against them and are seldom permitted to call witnesses.
The consideration of whether to hold a new round of hearings does not appear to reflect a change in the government’s view about their propriety. Instead, it would be a way for the government to fight off a recent court ruling in a case in which detainees have challenged their detention based on the first round of status review hearings.
Detainees’ lawyers said a decision to redo the hearings could delay those court challenges brought on behalf of the detainees, almost all of whom have been held for years without criminal charges.
A Pentagon spokesman, Cmdr. Jeffrey D. Gordon of the Navy, said military officials had recently decided to give one detainee a new combatant status hearing, but Commander Gordon said the court filing on Friday simply reflected that an assessment was under way.
“While discussions on a wide variety of detainee procedures continue within interagency circles,” Commander Gordon said, “no decisions have been made to redo Combatant Status Review Tribunals,” which are often referred to as C.S.R.T.’s.
The filing Friday in the case of one detainee said the government needed time to make a determination on whether to convene a new C.S.R.T., in that case and others.
The hearings have been the subject of withering attacks, including by two military hearing officers who have said that commanders had influenced their decisions and that evidence against the detainees was sometimes little more than anonymous accusations.
“The process was gravely flawed back in 2004,” said Joseph M. McMillan, a Seattle lawyer who represents a detainee, “and I think it would be even more flawed now.”
Repeating some of the earlier proceedings could also undercut the government’s position in a pivotal appeal now before the Supreme Court. In that case, the government is arguing that the combatant status hearings are rigorously fair and carefully conducted.
Detainees’ lawyers described the possibility of new hearings as a legal maneuver intended to help the Justice Department in what have become contentious challenges in the United States Court of Appeals for the District of Columbia Circuit.
In the appeals court, about 130 detainees are challenging the findings of their status hearings.
In those cases, the appeals court issued a ruling in July that directed the government to disclose virtually all of the information government agencies knew about the detainees when the military conducted the hearings in 2004 and 2005.
Justice Department lawyers have argued that the ruling would damage national security and was burdensome, partly because full records were not kept of what information was known about the detainees at the time of the original hearings. Holding new hearings could be a way to avoid the broad disclosure ordered by the court, lawyers said.
The separate Supreme Court case tests whether Congress had the authority to strip the courts of the power to hear habeas corpus cases by detainees, which would give the courts much broader powers than they have in reviewing the combatant status hearings.
In a recent Supreme Court brief, the Justice Department argued that the detainees had greater rights “than any other captured enemy combatants in the history of war.”
But Eric M. Freedman, a Hofstra law professor who has been a consultant to detainees’ lawyers, said discarding the original hearings after relying on them for nearly three years would damage that argument. Professor Freedman said it would show “obstruction, stonewalling, delay and absolute refusal to release people they cannot show any valid basis for holding.”
Last week The Associated Press reported that a hearing official at Guantánamo indicated a review of whether to conduct new hearings was under way.
“With all the outside eyes looking in at the process,” the official, Capt. Theodore Fessel Jr., was quoted as saying, “it’s forcing us to say, ‘O.K., did we take everything into consideration when we did the original Combatant Status Review Tribunals?’”
Commander Gordon said those comments were taken out of context.
In a decision on Oct. 3, the federal appeals panel declined a government request to reconsider its order to turn over the information on the detainees. But the panel added that the government had an alternative. The Pentagon could “convene a new C.S.R.T., taking care this time to retain all the government information.”
Erik Ablin, a Justice Department spokesman, said the filing on Friday indicated only “that we are considering our options.”