Senior Bush administration officials are considering moving hundreds of detainees from a facility in Cuba to prisons within the United States in response to Supreme Court rulings this week that granted military prisoners access to U.S. courts, officials said Tuesday.
As attorneys for detainees at the U.S. naval base at Guantanamo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military’s treatment of prisoners in the war on terrorism.
Now, after being handed the losses, the administration has been left to scramble to develop a strategy for granting hearings to detainees without having to cope with an unwieldy series of lawsuits throughout the nation.
“They didn’t really have a specific plan for what to do, case by case, if we lost,” a senior Department of Defense official said on condition of anonymity. “The Justice Department didn’t have a plan. State didn’t have a plan. This wasn’t a unilateral mistake on Department of Defense’s part. It’s astounding to me that these cases have been pending for so long and nobody came up with a contingency plan.”
To avoid ferrying prisoners and government lawyers to federal courts across the country, as might be required, Pentagon and Justice Department officials said they had discussed moving all detainees to a military prison in a conservative judicial district within the United States to enable the consolidation of all the proceedings in one court. They said possible locations could be Ft. Leavenworth, Kan., where there is an Army base with a military prison, or Charleston, S.C., home of the Charleston Naval Weapons Station, which houses the Navy brig.
Another option would be to allow prisoners to file for writs of habeas corpus -- a demand for legal justification for their imprisonment -- at a makeshift court at the base in Cuba. The Supreme Court left open the possibility of such an option.
Under a third proposal offered Justice Department officials and discussed at a high-level interagency meeting Tuesday, a senior administration official said, the administration would ask Congress to designate one federal court district to try the cases -- most likely Washington, D.C., or the Eastern District of Virginia, whose jurisdiction includes the Pentagon.
The changes could occur as part of a general reorganization of Guantanamo currently under consideration in which the prison facility would be revamped, with detainees segregated by the level of threat they are thought to pose, the senior administration official said.
The administration has faced months of criticism over its prisoner detention program. Critics say the issue, combined with the prison abuse scandal in Iraq and this week’s rulings, have undermined the administration’s contention that it could be trusted to offer detainees “full and fair” justice.
“The ‘trust us’ era is over,” said Joshua Dratel, a New York attorney who is representing Australian detainee David Hicks, one of three detainees who was referred Tuesday to the first military commission proceedings to be held since World War II.
Justice Department spokesman Mark Corallo challenged the view that legal and military planners had failed to adequately consider major setbacks by the high court.
“We obviously were prepared for any outcomes,” Corallo said. “The Defense Department was already providing some amount of process to Guantanamo prisoners. The court said that is not enough. So now we have to figure exactly what type of process will satisfy their rulings.”
But administration officials apparently guessed wrong on how the high court would rule.
An internal Justice Department memo reviewed Tuesday by the Los Angeles Times outlining communications plans in response to high court rulings on the issue listed two pages of talking points to be used “in case of win,” and a page of talking points to be used “in case of win if some sort of process is required” -- a partial victory. Yet, there was no category for action in the event of a broad defeat in the memo, titled “Supreme Court Decision Communications Plan.”
Few lawyers inside or outside the government doubted that the high court would allow the government the right to detain combatants during wartime, as has been allowed in every major war for two centuries. That option was upheld.
But the memo wrongly predicted an outright win in the case Hamdi vs. Rumsfeld, involving Yaser Esam Hamdi, a Louisiana-born man of Saudi descent captured in Afghanistan.
“The DOD/DOJ position on the detention of Hamdi will be decided in our favor as a clear-cut POW case,” the memo said, although Hamdi was not held as a prisoner of war.
The memo predicted a 5-4 vote in favor of the government in Rasul vs. Bush and Al Odah vs. United States. Justices in that case, involving 16 Guantanamo detainees seized in Afghanistan and Pakistan, found in the reverse, voting 6 to 3 that military prisoners who are not U.S. citizens cannot be held without access to American courts.
The Justice Department memo assumed that the case of Rumsfeld vs. Padilla, involving Jose Padilla, a U.S. citizen arrested in Chicago on suspicion of plotting to explode a radioactive device, would prove the hardest to win.
“The DOD/DOJ position on Padilla is the most tenuous and the one the court is most likely to take issue with, given that he has strong ties to the U.S.,” the agency wrote.
The detainee’s claims in that case were rejected on technical grounds because justices said it was filed in the wrong court.
Defense attorneys and government officials predicted that lawyers and human rights activists would rush to obtain the identities of detainees so they could file a flurry of so-called next friend petitions on behalf of friends and families of detainees.
Because Guantanamo Bay is not within any federal court jurisdiction, prisoners held there would be allowed to seek redress from any U.S. district court, officials said. “We do expect that people will file in every district in the country. The question is: Is that within the parameters of the Supreme Court’s ruling?” said Corallo of the Justice Department. “That’s what we’ve got to figure out -- would we then be forced to respond in 94 different district courts?”
A series of court cases on other matters may determine related issues in the next few years, such as whether Guantanamo prisoners can be exempted from international law and whether military commissions satisfy constitutional and international law, as the Bush administration contends.
The Pentagon on Tuesday named officers who will constitute the first commission, which will review the cases of three Guantanamo prisoners. Retired Army Col. Peter Brownback III was named presiding officer for the commission, and four other officers were assigned as commissioners. The defendants will be Hicks of Australia, Ali Hamza Ahamad Sulayman al Bahlul of Yemen and Ibrahim Ahmed Mahmoud al Qosi of Sudan. No trial dates were set.