Bush lawyers told to speed Guantanamo detention appeals

McClatchy NewspapersJuly 8, 2008 

WASHINGTON — A federal judge handling the appeals of more than 200 Guantanamo detainees vowed Tuesday to hold lawyers' "feet to the fire" to insure that the cases are handled as quickly as possible.

In the first hearing held since a Supreme Court decision gave the detainees the right to challenge their imprisonment in court, U.S. District Judge Thomas Hogan said he recognized the unprecedented nature of the proceedings.

But he warned both government and defense attorneys that he would be "suspicious" of any requests for delays because the detainees' constitutional rights were at stake.

Addressing Justice Department lawyers directly, he told them to prioritize the lawsuits over all other cases.

"We have to have a prompt resolution to these matters," he said, before adding, "The Supreme Court has spoken."

Dozens of lawyers representing the Justice Department and the detainees crammed into the Washington courtroom in an attempt to come to an agreement on how the cases should proceed. The high court's 5-4 opinion, Boumediene v. Bush, concluded that the detainees were protected by the U.S. Constitution's habeas corpus protections and struck down as inadequate an alternative military review system set up by Congress. Hogan was assigned to manage the cases because the ruling raised numerous questions about how the lawsuits should be handled procedurally.

Justice Department lawyers said Tuesday that they had cleared 54 of the detainees for release, but when Hogan asked whether they could simply be released without delay, Justice Department lawyer Judry Subar said "that's the issue the executive branch is struggling with."

"Maybe we can assist them," Hogan responded.

Administration officials have vowed to close Guantanamo some day, but say they're "stuck" with dozens of detainees who cannot be released because their native countries have refused to accept them back. In many cases, the detainees' lawyers have demanded the government convince another nation to take them because of fears their clients would be tortured in their native counties.

The Guantánamo detentions have been controversial from the beginning. Across six years, more than 750 enemy combatants were jailed at the prison camps in Cuba. More than 500 have been released, and among the 265 remaining only 20 have been singled out for war crimes charges.

While Hogan made it clear that he would push to insure that all the cases are heard, he said he believed certain cases should be given priority over others, rather than a "free-for-all" that would mean "whoever gets to court first wins."

Hogan also did not rule on one of the main disputes between the Justice Department and the detainee's lawyers — whether Justice Department lawyers could rely on new evidence to justify the imprisonment of many of the detainees.

The detainees' lawyers rejected the notion as "absurd", saying it gives the government a second chance to bolster their cases when they might not have had enough evidence originally to hold the detainees.

Gitanjali Guetierrez, an attorney for the Center for Constitutional Rights, said any further delays would violate rights protected by habeas corpus — a centuries old legal tenet that allows the accused to challenge the government's evidence.

"Our clients have been sitting in Guantanamo for years," she said. "After all this, the writ of habeas corpus will be rendered meaningless."

The detainees' lawyers urged the judge to order the Justice Department to turn over the original records in the cases within two weeks. The Justice Department wants eight weeks.

Assistant Attorney General Gregory Katsas told Hogan that the Supreme Court's ruling had raised an "unprecedented range of uncertainties," adding the department would not be able to comply with the deadline proposed by lawyers for the plaintiffs because of a lack of resources. Instead, he said the department could file records in about 50 cases a month — a prospect that he said would still "strain our resources almost to the breaking point."

"The government should be entitled, in 2008, to present its best case," Katsas said.

Before the Supreme Court's decision, only four Justice Department lawyers handled the detainee cases. Now, the department is ramping up to 50 lawyers — a number Hogan said still may not be sufficient.

Hogan said he was concerned about giving the Justice Department "carte blanche" to rely on additional evidence above and beyond what they originally had relied on to hold the detainees.

"If it wasn't sufficient, then they shouldn't have been picked up," he said. However, he indicated he would probably allow them to make their arguments for why it was necessary to present additional evidence. Hogan said he would start drawing up a schedule for handling the cases as early as this week.

McClatchy Newspapers 2008

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