Government Must Share All Evidence On Detainees

By Josh White
Washington Post Staff Writer
Saturday, July 21, 2007

A federal appeals court charged with reviewing the enemy combatant status of detainees at the U.S. detention facility in Guantanamo Bay, Cuba, ruled yesterday that the government must provide the court and defense lawyers with classified evidence gathered against the detainees. The ruling indicates that the court wants to conduct full reviews of the Bush administration's decisions about the suspected terrorists.

Judges on the U.S. Court of Appeals for the District of Columbia Circuit wrote that the court "must have access to all the information available" to the military's Combatant Status Review Tribunals to determine whether the tribunals were fair to Guantanamo detainees and whether the individuals should in fact be considered enemy combatants. Government lawyers had argued that the court should review only what was in the official record of the tribunals, not all the evidence they had gathered to support the hearings.

The court was ruling on motions filed in two cases arising out of the Detainee Treatment Act, which was passed in late 2005 and gives detainees the right to appeal tribunal decisions to the court of appeals -- currently their only legal option for challenging their detention. Although the detainees had their ability to file habeas corpus petitions stripped by Congress last year, the Supreme Court has agreed to hear a case that could reinstate such legal actions.

Chief Judge Douglas H. Ginsburg wrote that the court and the detainees' lawyers must see all the evidence because the Detainee Treatment Act requires the court to determine the validity of the tribunal decisions, and doing so without all available information would be inappropriate.

"The court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tribunal's status determination without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denominator," Ginsburg wrote for the three-judge panel.

Erik Ablin, a Justice Department spokesman, said it is too soon to comment: "We are evaluating the decision's implications and considering our options."

Defense lawyers said the decision continues to show that the Detainee Treatment Act review in federal court is much more limited than habeas corpus review and still puts too much of the process in the government's hands. Only the government knows what classified information it used to determine that detainees were enemy combatants, they said, and what information was not presented to the tribunals.

"Is this going to be a situation in which the government will tell the court: 'You just have to take our word for it?' " asked David Remes, who represents a group of detainees at Guantanamo.

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