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Detention Challenges Are Far Off for Many
Guantanamo Cases Make Little Progress

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.

Judges have generally given the Justice Department wide latitude in what information it can present to justify a detention. They set the bar of proof at "preponderance of the evidence," a standard in which the government wins if the evidence slightly tilts to its side. Since November, the government has won orders -- all by U.S. District Judge Richard J. Leon -- allowing it to detain five Guantanamo Bay prisoners.

Even so, records and judicial opinions have revealed that many cases are flimsy or even illogical.

Last month, after months of litigation, Leon eviscerated the government's case against a Syrian detainee, saying it was weak and defied "common sense."

Leon even used exclamation points in his opinion to highlight the case's absurdity. Another federal judge, Gladys Kessler, wrote that the government "produced virtually no credible evidence" to justify a Yemeni's confinement.

A third judge has criticized government attorneys for bringing a case against an Afghan because it is "riddled with holes."

"This case is an outrage to me," U.S. District Judge Ellen S. Huvelle said two weeks ago during a hearing on the detention of Mohammed Jawad, who might have been as young as 12 when captured. The Afghan is accused of injuring two U.S. soldiers and an Afghan interpreter in a December 2002 grenade attack.

Under pressure from the judge, the government announced last week that it was no longer contesting Jawad's challenge but was mulling over potential criminal charges instead. Huvelle on Thursday ordered Jawad's release. The government has until at least until Aug. 21 to send him home or charge him.

At Thursday's hearing, the judge criticized the government for its repeated delays in the habeas case. She stopped short of telling the government how to transfer Jawad, saying she didn't have the authority to tread into such territory.

Even when ordered freed, many detainees have remained prisoners. Under a recent appeals court ruling, federal judges have been given little power to enforce the ultimate remedy in habeas challenges: release of prisoners. An appeals court ruled in February that judges cannot order the release of detainees into the United States, and federal judges do not have the power to order other countries to accept detainees.

In another ruling, an appeals court held that judges cannot even compel the government to provide 30 days' notice about an impending transfer.

The decisions have led some judges to delay habeas challenges because the effort seems futile, especially if the government has already designated a detainee for transfer. One judge griped to a colleague that they have the power only to issue "advisory opinions."

Last month, for example, U.S. District Judge Reggie B. Walton delayed proceeding on a detainee's challenge because he did not "see any meaningful purpose in forging ahead."

The case involved Umar Abdulayev, 30, whom the government has approved for release, probably to his home country of Tajikistan. One of Abdulayev's attorneys, Matthew O'Hara, says the detainee does not want to be sent home because he is afraid he might be tortured. He asked Walton to block any such transfer and urged the judge to hold a habeas hearing on the government's evidence. O'Hara said he believes that a ruling in favor of his client might encourage another country to accept him.

Walton denied the request, saying in court that he did not have the power to block a transfer and that a habeas hearing would be pointless in light of the appellate decisions.

The complexities of cases were on display Thursday in a brief hearing before Leon, a judge who has methodically marched through most of his habeas challenges.

In November, Leon ordered the government to engage in diplomatic negotiations to release five Algerians who were picked up in Bosnia in 2001. Since the ruling, the government has transferred three men to Bosnia and one to France. The fifth, Saber Lahmar, 40, remains a prisoner because the government has been unable to find him a home.

Bosnia has apparently refused to accept him. Lahmar is in the same spot as more than a dozen Uighurs, Chinese Muslims who were ordered released but cannot go home because they fear they might be tortured. Four Uighurs were transferred recently to Bermuda, but 13 remain at Guantanamo Bay.

A Justice Department lawyer told Leon on Thursday that the State Department was working hard to find Lahmar a place to live.

The judge said he might eventually order a State Department official to testify to get another progress check. Otherwise there was little else for him to do.

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