By Josh White and Del Quentin Wilber
Washington Post Staff Writers
Friday, June 13, 2008
Defense attorneys for the 270 detainees at Guantanamo Bay said the Supreme Court decision yesterday that granted detainees habeas corpus rights was a watershed moment that will allow the men, some held for as long as 6 1/2 years, to challenge their detentions before a civilian judge.
The court's ruling immediately gives the detainees access to a federal court in Washington, where lawyers will seek to have judges order the men released from indefinite detention. Legal experts said it is unclear how the hearings will proceed, but the government could be compelled to present highly classified evidence, and detainees could for the first time be able to publicly call witnesses, present evidence of abuse and rebut terrorism allegations.
The decision could force the U.S. government to show why individual detainees must be held, something U.S. officials have fought for years. As many as 130 detainees have been deemed dangerous but are unlikely to ever face criminal charges, according to prosecutors, and now government officials could have to argue for indefinite detention even if the evidence is flimsy or nonexistent.
"We're going to see a high number of people the government is going to have to release," said Michael Ratner, president of the Center for Constitutional Rights, which has represented Guantanamo Bay detainees since 2002.
It is unclear how the Boumediene v. Bush decision will affect military commissions trials at Guantanamo Bay, Cuba, where 20 detainees, including self-described Sept. 11 mastermind Khalid Sheik Mohammed, have been charged with war crimes. Lawyers said those detainees probably will be able to challenge the system in federal court.
"While we disagree with the ruling, it is important to note that the Boumediene case did not concern military commission trials," said Peter Carr, a Justice Department spokesman. "Military commission trials will therefore continue to go forward."
U.S. District Judge Royce C. Lamberth, the chief judge of the federal court in Washington, said he is planning meetings with government and defense lawyers, and then the court's judges, to decide how to handle the cases.
"It remains to be seen exactly how this is going to develop, and what each side is going to do next," Lamberth said.
Michael Berrigan, deputy chief defense counsel in the Pentagon's Office of Military Commissions, said the decision could lead to challenges to the military commissions trials as well.
"I think it does mean something because they will get in front of federal court, in front of judges with life tenure, in a proceeding where they can actually develop a factual record, develop evidence and call witnesses, all outside the complete control of the government," he said.
Military prosecutors plan to charge as many as 80 detainees with war crimes. But the government has cleared for release or transfer about 60 detainees who might easily convince a judge that the United States should send them home.
"The most problematic cases are going to be those that fall in that middle, those who are unlikely to be prosecuted, yet are unlikely to be transferred or released anytime soon," said Matthew Waxman, a Columbia University law professor who oversaw detainee affairs at the Pentagon earlier in the Bush administration. "The big question is: What next? I hope the government uses this as an opportunity to turn the page on Guantanamo."
Another former administration official said the habeas cases could take years to resolve.
Richard Murphy and Brian Spahn, lawyers who represent six Yemeni detainees at Guantanamo Bay, said their clients are likely to be skeptical of the ruling because they have seen little progress following three prior Supreme Court victories.
"What we will ask the court to do, assuming the government cannot produce evidence that warrants their continued detention, is to order the government to release them and do what is necessary to return them to their home," Murphy said.
About 200 habeas cases are pending in the U.S. District Court in Washington, involving 250 Guantanamo Bay detainees, court officials said. Legal experts said they expect a flurry of motions in coming days.
Analysts said the judges have a complicated task, involving the possibility that detainees will want to attend the hearings. Judges may have to set up video conferences for them at Guantanamo Bay or travel there.
Staff researcher Julie Tate contributed to this report.