Basis for offshore prison is undercut

Times Staff Writers

The Bush administration may not be legally required to shut down its detention center at Guantanamo Bay, Cuba. But now there appears to be little legal reason to keep it open.

Thursday’s Supreme Court ruling on detainee rights eliminated the main reason for putting foreign prisoners in an offshore facility to begin with: to keep them out of American courts, where they could more effectively challenge their imprisonment.

The ruling reignited debate in Washington over whether it’s now time to close Guantanamo, a symbol of international controversy ever since it opened.


Defense Secretary Robert M. Gates is among administration officials making that argument, and the Pentagon has scouted options for transferring the detainees to American military prisons.

But the debate may be moot, because President Bush’s opinion has not changed.

“Given the history, I think there’s likely to be intense debate within the administration over this question,” said Matthew Waxman, a former Pentagon detainee affairs official who is now a law professor at Columbia University. “Will it happen in this administration? I hope so, but I’m pessimistic.”

Nevertheless, attorneys for many of the 270 detainees are planning to inundate the courts with petitions. The result will be dozens of hearings that will force the administration to make public much of its evidence in a process it will find difficult to control.

The civilian proceedings will differ dramatically from the original detention hearings at Guantanamo, said Charles D. Stimson, who also has overseen detainee affairs at the Pentagon.

In civilian courts, detainees will have lawyers who can present evidence and question witnesses. In some cases, evidence used against detainees at Guantanamo will be excluded in U.S. courts, such as information obtained through coercion or classified material.

“The administration is going to have to roll up its sleeves and pull together the evidence against the detainees,” said Stimson, now at the Heritage Foundation, a Washington think tank.

Gates, who was attending a NATO meeting in Brussels and had not yet read the ruling, declined to say it vindicated his position on closing Guantanamo. But he said the department would assess what it must do to comply.

“The ruling of the court is the law of the land, and we are going to have to look at what the implications are for us,” Gates said.

Gates’ efforts to close the prison were headed off by the Justice Department, which said that moving the prisoners to the United States would give them broad rights to appeal to civilian courts.

The issue at the heart of administration debates over the prison’s closure -- whether those in Guantanamo have access to civilian courts -- was also at the center of Thursday’s decision.

“A big argument for keeping Guantanamo open was to keep those detainees beyond the full reach of U.S. courts, and this decision rips that argument away,” said Waxman, one of the former Pentagon officials.

In the last year, many of the administration’s most ardent supporters of Guantanamo -- including William J. Haynes, a former Pentagon general counsel, and former Atty. Gen. Alberto R. Gonzales -- have left government.

Still, powerful advocates remain, in particular Vice President Dick Cheney and his influential chief of staff, David S. Addington.

Bush himself appeared to signal that his administration would look to limit the effect of the ruling on detainee policies, much as it has in the past.

In a news conference in Rome, he added that he might seek legislation to mitigate the decision.

Of the approximately 270 detainees, 80 face war crimes trials -- fewer than 20 of which have begun. Sixty prisoners have been approved for release but have not yet been sent home for various reasons, including because of the prospect of torture.

And about 130 are in an even murkier legal area, because the administration does not intend to charge them with war crimes yet considers them too dangerous to release. The ruling’s most significant effect will be on these detainees.

Legal experts said that those captives now appear to have the same rights as any prisoner in the U.S., eliminating the need for them to be held at Guantanamo.

The 80 detainees who face trial as war criminals -- including alleged Sept. 11 mastermind Khalid Shaikh Mohammed -- face a more uncertain future.

Their new rights in civilian courts are unlikely to lead to their release. A Justice Department spokesman said war crimes trials already underway, including those for Mohammed and fellow Sept. 11 plotter Ramzi Binalshibh, would continue.

Still, the ruling is expected to bring a new rush to the courts by all detainees except the 60 approved for release.

Within hours of the ruling, defense lawyers were printing the decision in Arabic, Pashto and other languages spoken by their clients.

They urged the prisoners to read it and to agree to seek a hearing before a federal judge.

“There are reasons why people fought long and hard for this; it’s a much more neutral forum with a better set of procedural and evidentiary rules,” said Michael J. Berrigan, deputy chief defense counsel in the Pentagon’s Office of Military Commissions.

“Any attorney worth their salt would seek review in federal court.”

Because of the ruling, some attorneys representing detainees accused of war crimes are preparing motions to dismiss the charges, including lawyers for Salim Ahmed Hamdan, whose case was the first to go before a military commission, Berrigan said.

Hundreds of lawyers for detainees plan to demand status conferences with federal judges in Washington as part of a coordinated effort, said Shayana Kadidal, senior managing attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in Washington.

Chief Judge Royce C. Lamberth of the U.S. District Court in Washington said he would call a meeting of judges to plan for new cases.

Many of the cases are already in the pipeline, Kadidal said. But he also predicted that the administration would release many detainees before formal court hearings to avoid the embarrassment of adverse findings.

“The day the government has to show up in court and justify holding these guys for six years, the day before that is the day they are likely to get released,” Kadidal said. “We want quick hearings and a quick resolution, and more importantly, the Supreme Court also wants a speedy resolution to these claims.”


Times staff writer Julian E. Barnes in Brussels contributed to this report.