More than three months after the Supreme Court declared that hundreds of detainees at the military prison at Guantanamo Bay, Cuba, have the right to challenge their imprisonment in U.S. courts, none has appeared in a courtroom.
Of the 68 alleged al Qaeda and Taliban fighters who have so far petitioned for access to federal court in Washington, only a handful have even spoken to their lawyers. With some held for nearly three years on the U.S. Navy base, the detainees remain largely precluded from receiving legal help because of protracted negotiations with the Justice Department over lawyers' security clearances, the government's insistence on monitoring attorney-client conversations and the number of visits lawyers will be allowed, defense attorneys told a U.S. District Court judge yesterday.
Less than half the detainees with lawyers have been given the government's reason for holding them; the government has broken a court-ordered Sept. 30 deadline to justify most of those detentions, the lawyers said. For the 28 detainees who have been informed, the reason is typically that a recent military review — conducted without an attorney or witnesses — has concluded that they are enemy combatants with links to the Taliban or al Qaeda.
The Justice Department, when ordered this month by a federal judge to formally respond to detainees' basic complaint that they are being unfairly imprisoned, filed a 96-page pleading asking the judge to dismiss the case. The document contained some of the same arguments made by government lawyers in their losing case before the Supreme Court.
"The government says it's very complicated, they need security clearance issues worked out, et cetera, et cetera," said Don Rehkopf, a military law expert with the National Association of Criminal Defense Lawyers and the attorney who helped get espionage charges against a serviceman at Guantanamo Bay dismissed. "That's garbage. The government is coming up with more and more excuses, and changing the rules on a daily basis."
Justice Department attorney Terry Henry yesterday told a federal judge overseeing the cases that the government has worked to be "reasonable and fair.
"We think we're making extraordinary strides to have these folks have their day in court," Henry said.
Right to challenge detention
The Supreme Court ruled June 28 that foreign nationals held at a U.S. military prison had some of the same rights as U.S. citizens imprisoned on other charges: to file a habeas petition and demand that the government justify the reason for detaining them.
In habeas cases, legal scholars and criminal defense lawyers said, a person who petitions the court for this information typically receives an answer within 30 days or is released.
Yet that fairly mundane legal step, conducted hundreds of times every day in courthouses around the country, has been transformed — against the backdrop of a war on terrorism and a presidential campaign focused on the administration's handling of that war — into a conflict that legal scholars call unprecedented.
"It's definitely ugly," said Douglas W. Kmiec, a professor of constitutional law at Pepperdine University Law School and a Justice Department official in the Reagan and George H.W. Bush administrations. "But it seems like the time we live in. It is simultaneously outrageous if it's a time of peace and totally reasonable if it's a time of war."
Hearing the cases is a retired senior judge, U.S. District Judge Joyce Hens Green, who is long on expertise in national security cases but short on time, staff or a clear mandate on how to handle them.
Tom Wilner, an attorney who represents 12 Kuwaitis and who brought the case that led to the Supreme Court decision, complained to Green yesterday that the government has stonewalled, violated her orders and is now in contempt of the nation's highest court. In a letter to Green last month, the detainee lawyers said that efforts to represent their clients had hit a roadblock since she was appointed.
"Why is it after three years, they can't say why they are holding these people?" Wilner asked yesterday. "We've had people rotting in prison, so we don't need any more delay. ... The Supreme Court has spoken. Nothing has happened yet."
Green disagreed. "I beg your pardon," she said. "Things have happened."
Determining who is released
Detainee lawyers said they cannot understand why some apparently dangerous detainees have been released while others who have not shown evidence of violence have not been set free. A former detainee who was recently released from Guantanamo Bay is now believed to be the leader of a militant band that kidnapped two Chinese engineers in a lawless region of Pakistan near the Afghanistan border, according to Pakistani officials.
Experts in military law and habeas cases said the obstacles in the Guantanamo Bay detainee cases stem from three main complications. Most notably, the lawyers do not have access to their clients, particularly in the new, closed military hearings the government inaugurated after the Supreme Court decision to determine whether individuals should continue to be classified as enemy combatants and detained. The plaintiffs do not have the information to make their case to the tribunal, which gives the government a lopsided advantage.
"When the detainees are denied meaningful access to counsel, the adversarial process is lost," said David P. Sheldon, a military law expert.
The U.S. District Court also stumbled for several weeks in deciding whether one judge would oversee the cases or whether some matters should be left to individual judges who initially presided over separate cases. At least three times, judges have decided not to rule on motions filed by lawyers in the detainee cases, saying they were deferring to the coordinating judge, and thus causing additional delay.
Some lawyers also lacked needed security clearances or expertise in military and habeas law, and some only recently began to apply to visit the base. "We're working as fast as we can, given the circumstances," Justice Department spokesman Mark Corallo said.
The war on terrorism also prompts the court to move slowly and deferentially when the government says the nation's safety is at stake.
Scholars disagree about how clear the Supreme Court ruling was. Many believe it promised detainees full rights to courts and all the due process the system provides. Kmiec said the decision was not so clear and gave the Justice Department room to argue that closed military review hearings are sufficient to determine the reason to hold detainees.
"They may have a good legal argument," Kmiec said of the government claim that the detainees do not need lawyers at those hearings. "But as a citizen, I always want my government to act on a plane higher than the minimum of what the law requires."