Court Tells U.S. To Reveal Data On Detainees At Guantánamo

Taken from The New York Times, July 21, 2007
By WILLIAM GLABERSON

A federal appeals court ordered the government yesterday to turn over virtually all its information on Guantánamo detainees who are challenging their detention, rejecting an effort by the Justice Department to limit disclosures and setting the stage for new legal battles over the government’s reasons for holding the men indefinitely.

The ruling, which came in one of the main court cases dealing with the fate of the detainees, effectively set the ground rules for scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants.

It was the latest of a series of stinging legal challenges to the administration’s detention policies that have amplified pressure on the Bush administration to find some alternative to Guantánamo, where about 360 men are now being held.

A three-judge panel of the federal appeals court in Washington unanimously rejected a government effort to limit the information it must turn over to the court and lawyers for the detainees.

The court said meaningful review of the military tribunals would not be possible “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the denominator.”

Advocates for detainees have criticized the tribunals since they were instituted in 2004 because the terror suspects held at Guantánamo have not been permitted lawyers during the proceedings and have not been allowed to see much of the evidence against them.

P. Sabin Willett, a Boston lawyer who argued the case for detainees, called the ruling “a resounding rejection of the government’s effort to hide the truth.”

A department spokesman, Erik Ablin, declined to comment on the decision, saying the department was “reviewing the decision’s implications and evaluating our options.”

The ruling came in the first case under a 2005 law that provides for limited appeals court review of the military’s Guantánamo hearings, known as combatant status review tribunals.

One of the legal challenges facing the administration is that the Pentagon efforts to try a small number of detainees for war crimes have been stalled since early June, when two military judges ruled there were defects in the procedures that had been followed in declaring the men to be enemy combatants.

Then, later last month, the Supreme Court agreed to hear an appeal from detainees claiming a right to challenge their detentions in federal courts through habeas corpus cases, a contention the administration has fought with some success in the courts and Congress.

The cases in the appeals court and the Supreme Court are both efforts by lawyers for the detainees to challenge the military’s decisions to hold the men.

The lawyers are pursuing habeas corpus rights because such cases would give federal judges far more power to review Pentagon decisions than the appeals court has to review the military tribunal actions. The lawyers have argued that in a 2005 law, Congress so limited the review permitted by the federal appeals court that the detainees need access to federal courts through habeas cases to get a fair review of their detentions.

When the Supreme Court said it would hear the Guantánamo case last month, its order made clear the justices would be carefully watching the appeals court decision as they consider broader Guantánamo issues. In an unusual comment, the Supreme Court’s order in June said, “it would be of material assistance” for the justices to receive arguments from the lawyers that take into account the appeals court ruling setting the rules for the review process.

The case in which the decision came yesterday involved requests by eight detainees for review of decisions by military tribunals.

The ruling also included significant victories for the government, including a decision allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments.

The decision noted that Congress said the appeals court’s review of the combatant status hearings was limited to determining whether the Pentagon followed its own procedures, and whether an enemy-combatant finding was supported by a preponderance of the evidence.

But it rejected the Justice Department assertion that the court should be able to examine only the information included in the combatant status hearing, not the more expansive information the government might have collected on a detainee.

The ruling was written by Douglas H. Ginsburg, the chief judge of the United States Court of Appeals for the District of Columbia Circuit..

“In order to review compliance with those procedures,” Judge Ginsburg wrote, “the court must be able to view the government information.”

Detainees’ lawyers have argued that the military officials running the hearings may not have collected information that might support the detainees’ cases. But detainees’ lawyers also said the ruling created the likelihood of fresh legal battles over what information in the government’s vast intelligence files was covered, and whether the government in fact produces all its information dealing with specific detainees.

The decision allowed the government to file its information with the court for review if the government argues the contents are too sensitive to be released. It also defined government information as including only that which is “reasonably available.”

Throughout the legal battles over Guantánamo, detainees’ lawyers have argued that the government has used such rules to limit their effectiveness by maintaining control over information.

Wells Dixon, a lawyer at the Center for Constitutional Rights in New York who represents detainees, said that pattern was likely to be repeated. “Once again,” Mr. Dixon said, “we are left to rely on the government to produce all of the information that it says exists.”