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Court Tells US to Reveal Data on Detainees at Guantánamo
By William Glaberson
The New York Times
Saturday 21 July 2007
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 Bay,
Cuba, where about 360 men are now being held at the United States
naval base.
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 Justice 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
important 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."
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