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U.S. Stymies Detainee Access Despite Ruling, Lawyers Say

Green disagreed. "I beg your pardon," she said. "Things have happened."

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.

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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."


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