A federal judge overseeing Guantanamo Bay lawsuits ordered the Justice Department to put other cases aside and make it clear throughout the Bush administration that, after nearly seven years of detention, the detainees must have their day in court.
"The time has come to move these forward," Judge Thomas F. Hogan said Tuesday during the first hearing over whether the detainees are being held lawfully. "Set aside every other case that's pending in the division and address this case first."
The Bush administration hoped it would never come to this. The Justice Department has fought for years to keep civilian judges from reviewing evidence against terrorism suspects. But a Supreme Court ruling last month opened the courthouse doors to the detainees.
About 200 lawyers, law clerks and reporters sat through the nearly three-hour court hearing. Other lawyers joined by phone for the historic hearing. Attorneys, nearly all of them working for free, have long asked for a judge to scrutinize the evidence, saying the detainees could not be held indefinitely, simply on the government's say-so.
"A day in court on the Guantanamo cases is a treasured moment," said Gitanjali Gutierrez, one of two attorneys for the Center for Constitutional Rights selected to address the court on behalf of all the lawyers.
There are about 270 detainees being held at the U.S. naval base at Guantanamo Bay, Cuba. The government has already cleared one of five for release and is just looking for a country to send them to, the Justice Department said.
"That's the issue the executive branch is struggling with," Justice Department attorney Judry L. Subar said.
"Maybe we can assist them," Hogan said.
Hogan is coordinating most of the estimated 200 Guantanamo Bay cases on behalf of most of the Washington federal judges. He will decide how quickly the Justice Department must turn over the evidence against the detainees.
The Justice Department is asking for about eight weeks to start doing so. It is dramatically expanding the litigation team handling the cases and is asking for time to get the new attorneys brought up to speed, settled in their new offices and approved to handle the classified evidence.
It also wants time to update and add to the evidence that was originally used to justify holding the detainees.
"The government should be entitled, in 2008, to present its best case," Justice Department attorney Gregory G. Katsas said.
Lawyers for the detainees adamantly oppose that move and Hogan was skeptical of the plan. If the evidence was enough to warrant holding the detainees for six years, he said he didn't understand why it suddenly needs to be changed.
"If it wasn't sufficient, then they shouldn't have been picked up," Hogan said, adding that he probably would make the government explain any proposed change.
A schedule has not been set but it appears judges could begin reviewing evidence in September. If judges find the evidence lacking, they could order detainees released, but the Bush administration would decide where to send them. Judges do not generally have authority to bring detainees into the U.S., despite White House assertions that the court process could release terrorists onto U.S. streets.
Shayana Kadidal, another attorney for the Center for Constitutional Rights, said he doubts most detainees ever get that far. He predicted that once judges order the evidence released, the Bush administration would try to release as many detainees as possible to prevent judges from scrutinizing it.
In those cases in which evidence is reviewed, judges will decide how much weight to give the government's evidence, which in many situations will include unidentified sources and hearsay.
A federal appeals court recently scrutinized the case of a Chinese Muslim and found the evidence lacking. The court said the detainee must be released. Susan Baker Manning, an attorney in that case, said she expects district court judges to be similarly skeptical of the government's evidence.