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A year after ruling, Guantanamo detainees remain in legal limbo

WASHINGTON—One year ago, the Supreme Court issued a landmark ruling that opened the door to federal courts for 500-plus prisoners in the Guantanamo Bay prison camp to challenge their captivity.

But 200 detainees, including some held more than three years, who have filed habeas corpus petitions in federal court haven't been able to get through that door. After months of procedural battles, no judge has heard the merits of a single Guantanamo case.

As controversy mounts over the treatment of Guantanamo detainees, and the Bush administration argues that prisoners can be held indefinitely without being charged, even some Republican senators have called for a faster resolution of their cases.

"Our whole system is to get people to determine what the facts are, charge them and move ahead," said Sen. Mike DeWine, R-Ohio, at a recent hearing. "What's going on here? This seems to be a horribly slow process."

A habeas corpus petition, in which a prisoner claims he's being improperly jailed, "is supposed to get fast-track consideration because personal liberty is an urgent issue," said Eugene Fidell, president of the National Institute of Military Justice.

But that hasn't happened.

The Center for Constitutional Rights, which helped organize 400 lawyers to represent detainees, has had little lasting success in the year since the Supreme Court's ruling required hearings on the detentions.

"We've had some strong rulings in our favor on one hand, and then they're taken away on the other hand," said Michael Ratner, president of the center.

Several factors, including vagueness in the 2004 Supreme Court ruling, have slowed down the pace of litigation in the Guantanamo cases, according to Fidell and other legal and national security experts.

The court, in the 6-3 decision of Rasul v. Bush, settled one important question: It ruled that Guantanamo—a naval base leased from Cuba—isn't outside U.S. law and that U.S. courts could hear detainees' claims.

But it didn't set out a process to do that, leaving it to lower courts.

"It's not unusual for the Supreme Court to give a broad legal ruling and leave the details up to the district courts," said Scott Silliman, director of the Center on Law, Ethics and National Security at Duke University.

Fidell was more critical: "The court didn't do what it needed to do. Because it gave no blueprint, we have hundreds of detainees held for years, and their cases have no resolution in sight."

The Bush administration has resisted judicial review at every juncture. The Defense Department originally sought to bar lawyers' access to Guantanamo, then wanted to monitor their conversations with detainees, but lost on those issues.

"They have dug in their heels every step of the way," Ratner said. "They have ignored the clear thrust of the Supreme Court."

Justice Department attorneys argued that special military panels, set up last year, gave detainees adequate due process in reviewing their status as enemy combatants. Two federal judges, Joyce Hens Green and James Robertson, rejected that argument; one, Richard J. Leon, agreed.

Even district judges who have ruled against the government have moved methodically, recognizing that appellate judges and eventually the Supreme Court will resolve the major issue of what rights a detainee has in federal court.

Green issued a strong ruling on Jan. 31 against the government, declaring that while she "would have welcomed a clearer declaration" from the Supreme Court, she decided that the prisoners had "enforceable constitutional rights."

But she then issued a stay, because her decision and one by Leon were in conflict, sending the habeas cases to the U.S. Court of Appeals in Washington. That court is receiving final briefs but hasn't yet scheduled oral arguments.

In a related case, Robertson halted military trials of a handful of detainees in November, citing a lack of due process. A ruling from the appellate court on that case is expected this summer.

Lee Casey, who worked in the Justice Department in two Republican administrations, said that "judges are moving cautiously because of the difficult national security issues involved."

"There's a lot of rhetoric in some of those lower court rulings, but no releases have been ordered," Casey added. "And in the time frame of courts, one year is not a long time."

"Judges are mindful of not getting in the way of a president during a war in Iraq," Fidell said, and they know that Congress is "missing in action" on defining the rules and procedures for holding detainees.

But Fidell sees signs that judges are growing impatient over a key administration argument: that detainees "can be held forever as combatants and never be charged."

Silliman said that what the courts are doing is historic, even if it's too slow for some political leaders.

"Even in a time of war, judges are not just deferring to the commander in chief and are carving out real judicial review," he said.

Casey and other defenders of the administration say there's a fundamental misunderstanding about Guantanamo behind the cries of frustrated senators, who see the prison camp as an international embarrassment.

"This is still a military and intelligence-gathering operation, not a criminal justice matter," Casey said. "These are combatants, but there's this wrong impression that the FBI has evidence against them for a criminal case."

Critics say that lack of reliable evidence is a big part of the problem. Ratner and other lawyers stress that many of their clients weren't captured on the battlefield in Afghanistan, but grabbed by warlords and sold to U.S. forces or taken by Pakistani security forces. Others were captured in Bosnia, Africa and Thailand.

But so far, these prisoners haven't been able to use the "great writ" of habeas corpus to force the government to defend their detentions before a judge.

"That day may come, but it will take more time," Fidell said.

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(c) 2005, Knight Ridder/Tribune Information Services.

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