Legal, Diplomatic Issues Stall Guantanamo Detainees' Confinement Challenges

By Del Quentin Wilber
Washington Post Staff Writer
Friday, July 31, 2009

In the 13 months since the Supreme Court issued its landmark decision granting detainees at the U.S. military prison at Guantanamo Bay, Cuba, the right to challenge their confinements before federal judges, most prisoners still have not had their day in court.

In addition, prisoners who have successfully contested their detentions are having difficulty getting released. Nineteen of 28 detainees ordered freed remain at Guantanamo Bay, ensnared in a diplomatic and legal limbo that has frustrated federal judges, the government and attorneys for detainees.

In the days after the Supreme Court's June 12, 2008, decision, federal judges said they would push the government to swiftly resolve civil lawsuits brought in the District's federal court by about 200 detainees under habeas corpus, a centuries-old legal doctrine that allows prisoners to challenge their confinements before independent arbiters.

But the cases quickly bogged down in appeals court rulings and lengthy fights over legal theories and evidence. In some cases, after years of court battles, the government abandoned allegations on the eve of hearings. That was the case involving a young Afghan detainee who was ordered released Thursday.

In many respects, judges and attorneys for the government and detainees have spent much of their time in the past year tussling over some of the same vexing issues that have stymied two presidents and Congress and recently forced a Justice Department task force to announce that it needed six more months to complete its work.

"These cases are difficult," U.S. District Chief Judge Royce C. Lamberth said in an interview about the issue last week. "We are having to develop answers to complicated legal questions. These are novel cases in our country's history."

Judges, lawyers, government officials and outside experts said there are myriad reasons for the sluggish progress, despite the declaration in Justice Anthony M. Kennedy's opinion that "the costs of delay can no longer be borne by those who are held in custody."

Although the opinion was sweeping, the high court gave little guidance in how to handle the lawsuits, forcing judges to create rules and procedures on the fly.

The government's evidence is heavily classified, resulting in cumbersome handling procedures. Judges, for example, cannot take most government documents home to review at night. Instead, most of the judges visit the courthouse on weekends to review Guantanamo Bay files. The work is so time-consuming that the judiciary has assigned federal judges from outside the District to help handle routine civil matters.

Battles over legal issues and evidence have also gobbled up time. Attorneys for detainees have aggressively sought access to medical records and documents that might undermine government allegations. Meanwhile, the government has fought the detainees' requests and has continued to defend cases that judges say are surprisingly weak.

David J. Cynamon, a lawyer representing four detainees, accused the Justice Department of enacting a "scorched-earth defense policy in fighting every issue, big and little, that comes up in the cases."

Justice Department officials counter that they are trying to protect national security and classified information. They also rejected criticism from judges and detainee attorneys about the strength of their cases, saying most of their evidence was collected on chaotic battlefields for intelligence purposes, not for a courtroom.

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