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2008 habeas ruling may pose snag as U.S. weighs indefinite Guantanamo detentions

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By Del Quentin Wilber
Washington Post Staff Writer
Saturday, February 13, 2010

The case against Saeed Mohammed Saleh Hatim seemed ironclad.

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The Justice Department alleged that Hatim, a detainee at the U.S. military prison at Guantanamo Bay, Cuba, trained at an al-Qaeda military camp in Afghanistan, stayed at terrorist guesthouses and even fought in the battle of Tora Bora. The accusations were built on Hatim's own words and those of a witness, a fellow Guantanamo Bay detainee, court records show.

But a federal judge reviewed the case and found the government's evidence too weak to justify Hatim's confinement. The judge ordered the detainee's release, ruling that he could not rely on Hatim's statements because they had been coerced. He also found that the government's informer was "profoundly unreliable."

The case is more the rule than the exception. Federal judges, acting under a landmark 2008 Supreme Court ruling that grants Guantanamo Bay detainees the right to challenge their confinements, have ordered the government to free 32 prisoners and backed the detention of nine others. In their opinions, the judges have gutted allegations and questioned the reliability of statements by the prisoners during interrogations and by the informants. Even when ruling for the government, the judges have not always endorsed the Justice Department's case.

The rulings in the Hatim case and the 31 others may be a harbinger of trouble for the Obama administration, which is considering plans to indefinitely detain dozens of Guantanamo Bay prisoners without civilian or military trials. Although the detainees will never face a jury, they are entitled to their day in court under the Supreme Court ruling.

Legal scholars and outside experts who have studied the issue say the government is likely to suffer further losses because many cases appear to be built on the same kinds of evidence that have drawn such skepticism -- incriminating statements by detainees and informers.

"Nobody who has looked at the last 18 months of litigation can emerge with a high confidence level that the government is going to prevail uniformly in cases of people it regards as extremely dangerous," said Benjamin Wittes, a senior fellow at the Brookings Institution who recently co-authored a long paper about the detainee challenges.

The detainees' lawsuits have been brought under the centuries-old legal doctrine of habeas corpus, which permits prisoners to contest confinements before judges.

Of the 192 detainees being held at Guantanamo Bay, a Justice Department-led task force has concluded that about 110 can be safely released, either immediately or eventually. It recommended that about 35 be prosecuted in federal or military courts, leaving about 50 who are considered too dangerous to be freed but cannot face trial because the evidence is too shaky to hold up in court. Justice Department officials say they are also concerned that public trials might expose intelligence operations or other classified information.

The number of detainees in that category might rise. Authorities think they must continue to detain at least 30 Yemenis, perhaps more, until the security situation in their homeland stabilizes. About 90 Yemenis are detained at Guantanamo Bay.

Burden of proof

Obama officials are optimistic that they will prevail in upcoming habeas challenges. The Justice Department task force evaluated detainee files for months, and the strength of the habeas cases was a top factor in deciding whether to detain prisoners without trials, the officials said.

"We're confident in our ability to demonstrate to the courts that these individuals are being lawfully held," a department official said.


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