Court rejects limit on detainee evidence

When Guantanamo Bay detainees challenge their designation as “enemy combatants,” judges must receive all the evidence, not just what the military chose to present at the detainees’ status review tribunals, a federal appeals court ruled Friday.

The U.S. Court of Appeals for the District of Columbia Circuit rejected the Bush administration’s plan to limit what judges and the detainees’ attorneys can review when considering whether the Combatant Status Review Tribunals acted appropriately.

The court agreed to adopt a presumption that “counsel for a detainee has a ‘need to know’ the classified information relating to his client’s case.”

It said the government could “withhold from counsel, but not from the court, certain highly sensitive information.”

The appeals court decision is likely to be considered by the Supreme Court as it decides whether detainees should have greater access to U.S. civilian courts.

When detainees are brought before status review tribunals, they are not allowed to have lawyers with them, and the Pentagon decides what evidence to put forward. Unlike in criminal trials, there is no obligation for the government to turn over evidence indicating defendants’ innocence. A prisoner can challenge “enemy combatant” designation in the D.C. Circuit Court of Appeals.

But the appellate judges have the authority to review only the evidence the Pentagon presented at the tribunal, the government argued.

The appeals court disagreed. Without all the information, it said, deciding whether “enemy combatant” designation was warranted would be like trying to figure out “whether a fraction is more or less than one-half by looking only at the numerator.”

Lawyer Sabin Willett, who argued the case for the detainees, said the court had “resoundingly rejected the government’s effort to control the record and to limit an investigation into the truth.”

But Washington attorney David Remes, who represents 17 detainees, said the court’s decision amounted to “a prescription for endless litigation in these cases.”

“The court said that its review goes beyond the information presented to the Combatant Status Review Tribunals, but the court never explains how it can determine what that information might be,” said Remes.

He said the court’s decision made clear that “the review under the Detainee Treatment Act falls short of constitutionally required habeas corpus review.” The Supreme Court will soon consider whether detainees have the right to challenge their detention in federal courts.