Despite court ruling, detainees' cases delayed

The Baltimore Sun

When the Supreme Court ruled in June that detainees at Guantanamo had the right to challenge their detention in federal court, the justices said that after more than six years of legal wrangling the prisoners should have their cases heard quickly because "the costs of delay can no longer be borne by those who are held in custody."

But nearly four months later, as the Bush administration has opened a new defense of its detention policies in federal court, none of the scores of cases brought by detainees have been resolved by a judge.

Since the Supreme Court issued its ruling, lawyers for most of the 255 detainees in Guantanamo Bay, Cuba, have pressed ahead with habeas corpus lawsuits, yet most of those cases have been delayed by battles over issues like whether some court sessions will be conducted in secret, whether detainees can attend and what level of proof will justify detention.

Some of the arguments made by the Justice Department appear to challenge the Supreme Court's conclusion that the federal courts have a role in deciding the fate of the detainees. One Bush administration argument asserts that only military officials - not federal judges - have the power to decide how to conclude wartime detentions.

Officials and lawyers inside and outside of the government say the new legal confrontation suggests that the Bush administration will most likely continue its defense of the detention camp until the end of President Bush's term and is not likely to close the camp, as administration officials have said they would like to do.

"The legal issues that are being raised by the administration are going to take longer than the remaining time of the administration" to resolve, said Vijay Padmanabhan, an assistant professor at Cardozo Law School who was until July a State Department lawyer with responsibility for detainee issues.

"It is part of a broader strategy," Padmanabhan added, "which is not to make difficult decisions about Guantanamo and leave it to the next president."

Detainees' advocates say that the administration is using the legal battle to delay judicial review of its evidence, while government lawyers argue that the cases are moving rapidly considering that they are unprecedented.

A Justice Department spokesman, Erik Ablin, said the government was working toward quick hearings for detainees, but was determined to take every precaution to avoid having dangerous people released.

Habeas corpus suits, which have their root in centuries-old English law, are generally streamlined proceedings for prisoners to force officials to explain why the prisoners are being held. The Guantanamo cases permitted by the Supreme Court's ruling, Boumediene v. Bush, are to review the government's reasons for holding the men as enemy combatants.

The military's enemy combatant hearings, which the administration says permit indefinite detention, are separate from the Pentagon's effort to prosecute some detainees in military commission trials.

A first test of a judge's power in a federal habeas case may come on Tuesday during arguments in a case involving 17 detainees who claim a right to immediate release. The path to court has been slow for the habeas cases, and most seem unlikely to reach resolution until well into the next president's administration, lawyers say. In some cases, government lawyers are adding new grounds for holding the men, supplementing or replacing the accusations made during Guantanamo hearings four years ago.

Lawyers say some of the government's arguments could create grounds for years of new appeals by the Justice Department in the event a detainee is released.

The government is relying extensively on classified information. That is quite likely to raise defense questions about how detainees can defend themselves because they are not permitted to see much of the evidence against them - long a contentious issue in the military's hearings at Guantanamo Bay.

"Time is on their side," Matthew J. MacLean, a Washington lawyer for four Kuwaiti detainees, said of the government. "Every day of delay is one more day our clients are in prison without a hearing."

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