WASHINGTON – After a legal duel over torture allegations and wartime powers, U.S. District Judge Joyce Hens Green said Wednesday that she would decide soon whether to require the Bush administration to defend, case by case, the detention of prisoners in Guantanamo.
A Supreme Court ruling June 28 opened the legal door for detainees to challenge their detention, but left it up to the district courts to decide how to do that.
Lawyers for 54 captives who filed habeas corpus petitions, trying to force the government to justify their confinement, complained that the administration has been dragging its feet for five months in complying with the high court’s ruling.
“We have been unable to test the evidence used against them,” said Tom Wilner, who represents 12 Kuwaiti detainees, during a lively, three-hour hearing. “And many of their statements may have been made pursuant to torture.”
Justice Department lawyers said the administration complied with the ruling by holding hastily organized “status review tribunals,” run by the military and begun in July, for all 550 detainees. Some have been imprisoned for more than three years at Guantanamo as “enemy combatants.”
As of Monday, at least 430 hearings had been held at Guantanamo. So far, Defense officials have reviewed 161 cases and concluded that all but one detainee is properly held as an enemy combatant.
Federal courts should not be “in charge of Guantanamo” and judges should give great deference to presidents in wartime, said Brian Boyle, a Justice Department lawyer.
“I don’t mean to be off-putting, but the judicial role is very narrow here,” Boyle said.
Judge Green’s immediate decision is whether to grant the administration’s motion to dismiss the detainees’ petitions. Defense lawyers want her to rule against the review tribunals, and many of her detailed questions Wednesday showed that she was skeptical about the military’s review process.
Green asked about the procedures, the qualifications and training of the officers in the tribunals, problems with translators and whether detainees had time to make their case that they were not enemy combatants.
At one point, she asked if a “little old lady in Switzerland” who unwittingly gave money to an Afghan charity that was a front for al Qaeda could be held as an enemy combatant. Boyle said she could be, and that the U.S. military could detain any foreigner who gave support to terrorists.
Defense attorneys blasted the review tribunals – nonjudicial hearings without lawyers – as unfair and inadequate. “They mock this nation’s commitment to due process,” Joseph Margulies said.
The lawyers said several of their clients had made specific complaints about beatings and other abuses, including statements made after mistreatment, but the review tribunals did not consider those detainee complaints.
The International Committee of the Red Cross complained privately to the administration this summer that coercive tactics used against detainees at Guantanamo were, in the committee’s words “tantamount to torture,” according to a New York Times report this week.
Boyle told the judge that “some incidents” of mistreatment at Guantanamo had been investigated, with a handful of guards and interrogators disciplined or removed.