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July 21st, 2007 - Court Tells U.S. to Reveal Data on Detainees at Guantánamo
By William Glaberson
New York Times
July 21, 2007
A federal appeals court ordered the government yesterday to turn over virtually all its information on Guantánamo detainees who are challenging their detention, rejecting an effort by the Justice Department to limit disclosures and setting the stage for new legal battles over the government’s reasons for holding the men indefinitely.
The ruling, which came in one of the main court cases dealing with the fate of the detainees, effectively set the ground rules for scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants.
It was the latest of a series of stinging legal challenges to the administration’s detention policies that have amplified pressure on the Bush administration to find some alternative to Guantánamo, where about 360 men are now being held.
A three-judge panel of the federal appeals court in Washington unanimously rejected a government effort to limit the information it must turn over to the court and lawyers for the detainees.
The court said meaningful review of the military tribunals would not be possible “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the denominator.”
Advocates for detainees have criticized the tribunals since they were instituted in 2004 because the terror suspects held at Guantánamo have not been permitted lawyers during the proceedings and have not been allowed to see much of the evidence against them.
P. Sabin Willett, a Boston lawyer who argued the case for detainees, called the ruling “a resounding rejection of the government’s effort to hide the truth.”
A department spokesman, Erik Ablin, declined to comment on the decision, saying the department was “reviewing the decision’s implications and evaluating our options.”
The ruling came in the first case under a 2005 law that provides for limited appeals court review of the military’s Guantánamo hearings, known as combatant status review tribunals.
One of the legal challenges facing the administration is that the Pentagon efforts to try a small number of detainees for war crimes have been stalled since early June, when two military judges ruled there were defects in the procedures that had been followed in declaring the men to be enemy combatants.
Then, later last month, the Supreme Court agreed to hear an appeal from detainees claiming a right to challenge their detentions in federal courts through habeas corpus cases, a contention the administration has fought with some success in the courts and Congress.
The cases in the appeals court and the Supreme Court are both efforts by lawyers for the detainees to challenge the military’s decisions to hold the men.
The lawyers are pursuing habeas corpus rights because such cases would give federal judges far more power to review Pentagon decisions than the appeals court has to review the military tribunal actions. The lawyers have argued that in a 2005 law, Congress so limited the review permitted by the federal appeals court that the detainees need access to federal courts through habeas cases to get a fair review of their detentions.
When the Supreme Court said it would hear the Guantánamo case last month, its order made clear the justices would be carefully watching the appeals court decision as they consider broader Guantánamo issues. In an unusual comment, the Supreme Court’s order in June said, “it would be of material assistance” for the justices to receive arguments from the lawyers that take into account the appeals court ruling setting the rules for the review process.
The case in which the decision came yesterday involved requests by eight detainees for review of decisions by military tribunals.
The ruling also included significant victories for the government, including a decision allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments.
The decision noted that Congress said the appeals court’s review of the combatant status hearings was limited to determining whether the Pentagon followed its own procedures, and whether an enemy-combatant finding was supported by a preponderance of the evidence.
But it rejected the Justice Department assertion that the court should be able to examine only the information included in the combatant status hearing, not the more expansive information the government might have collected on a detainee.
The ruling was written by Douglas H. Ginsburg, the chief judge of the United States Court of Appeals for the District of Columbia Circuit..
“In order to review compliance with those procedures,” Judge Ginsburg wrote, “the court must be able to view the government information.”
Detainees’ lawyers have argued that the military officials running the hearings may not have collected information that might support the detainees’ cases. But detainees’ lawyers also said the ruling created the likelihood of fresh legal battles over what information in the government’s vast intelligence files was covered, and whether the government in fact produces all its information dealing with specific detainees.
The decision allowed the government to file its information with the court for review if the government argues the contents are too sensitive to be released. It also defined government information as including only that which is “reasonably available.”
Throughout the legal battles over Guantánamo, detainees’ lawyers have argued that the government has used such rules to limit their effectiveness by maintaining control over information.
Wells Dixon, a lawyer at the Center for Constitutional Rights in New York who represents detainees, said that pattern was likely to be repeated. “Once again,” Mr. Dixon said, “we are left to rely on the government to produce all of the information that it says exists.”
External link: http://www.nytimes.com/2007/07/21/us/21gitmo.html
By Mark Mazzetti
New York Times
July 21, 2007
Washington, July 20 - The White House said Friday that it had given the Central Intelligence Agency approval to resume its use of some severe interrogation methods for questioning terrorism suspects in secret prisons overseas.
With the new authority, administration officials said the C.I.A. could proceed with an interrogation program that had been in limbo since the Supreme Court ruled last year that all prisoners in American captivity be treated in accordance with Geneva Convention prohibitions against humiliating and degrading treatment.
A new executive order signed by President Bush does not authorize the full set of harsh interrogation methods used by the C.I.A. since the program began in 2002. But government officials said the rules would still allow some techniques more severe than those used in interrogations by military personnel in places like the detention center in Guantánamo Bay, Cuba.
Several officials said the permitted techniques did not include some of the most controversial past techniques, among them “waterboarding,” which induces a feeling of drowning, and exposure to extremes of heat and cold.
The basic outcome had been expected, but it was preceded by months of intense disagreement within the administration about where to draw the line on C.I.A. interrogations. The new list of techniques has been approved by the Justice Department as not violating the Geneva strictures, a step that Congress insisted on last October when it passed the Military Commissions Act, which formally authorized the C.I.A. program.
The White House order brought condemnation on Friday from human rights groups, which argued that it helped systematize a program of indefinite, incommunicado detention and used methods that violated international law. But in a message to agency employees on Friday, Gen. Michael V. Hayden, the C.I.A. director, defended the program as having been “irreplaceable,” though he said extraordinary techniques had been used on fewer than half of about 100 terrorism suspects.
General Hayden said the White House order would allow the agency to “focus on our vital work, confident that our mission and authorities are clearly defined.” The C.I.A. said it had suspended its use of harsh interrogation procedures during the debate over the new rules, even as the White House argued that the agency should be given extra latitude to carry out effective interrogations of terrorism suspects.
Senator John D. Rockefeller IV of West Virginia, the Democratic chairman of the Senate Intelligence Committee, said he would wait to review the Justice Department’s legal reasoning before he passed judgment. General Hayden briefed the intelligence committees earlier in the year about the agency’s own review.
The specific interrogation methods now approved for C.I.A. use remain classified, but several officials said they did not include waterboarding, which human rights organizations and some members of Congress have said are equal to torture. The C.I.A. acted on its own beginning in 2004 to prohibit some of these measures after their use became publicly known.
In a conference call with reporters on Friday, a senior administration official indicated that another technique now forbidden would be exposure to temperature extremes, and the executive order itself states that detainees must be protected “from extremes of heat and cold.” It is unclear whether sleep deprivation, another technique used in past C.I.A. interrogations, is authorized.
The order uses a definition of “humiliating and degrading treatment” that conforms to standards set by international case law, a victory for State Department officials.
According to the senior administration official, the C.I.A. will bar the International Committee of the Red Cross from visiting detainees in agency hands, a prohibition it has enforced in the past.
Earlier this year, State Department officials rejected a draft of the executive order because they believed that the language was too permissive and could open the Bush administration to challenges from American allies that the White House was legalizing methods that approach torture. Some Bush administration officials, including members of Vice President Dick Cheney’s staff, pushed for a more expansive interpretation of Geneva Convention language and for interrogation methods that the C.I.A. had not even requested.
According to one senior intelligence official, nearly half of the source material used in the recent National Intelligence Estimate on the terrorism threat to the United States came from C.I.A. interrogations of detainees.
Some human rights groups said they feared that the Bush administration was using creative legal reasoning to justify practices that close American allies have banned.
“This is an administration that won’t even publicly denounce waterboarding,” said John Sifton, a lawyer at Human Rights Watch. “It’s hard to believe that they will be interpreting these standards in a way that is true to the spirit of the Military Commissions Act.”
But other critics of the harsh C.I.A. interrogation practices of the past, including former top Bush administration officials, said that the executive order was a step in the right direction. “The U.S. government is continuing to move toward an approach to this vital area of human intelligence collection that is more sustainable - morally, politically, and legally,” said Philip D. Zelikow, who served as counselor to Secretary of State Condoleezza Rice until last year and who delivered a blistering lecture earlier this year denouncing the C.I.A.’s interrogation program as it was used in the past.
The executive order applies only to detainees in C.I.A. hands, not to those in military custody. Last September, all 14 prisoners in C.I.A. custody were transferred to the island prison and put under Pentagon control, including two senior operatives of Al Qaeda, Abu Zubaydah and Khalid Shaikh Mohammed, who has confessed to being the mastermind of the Sept. 11 attacks. It is unclear how many suspects have passed through the program since then, or if the C.I.A has anyone in its prisons. The only prisoner that the C.I.A. has acknowledged holding since last fall is Abd al-Hadi al-Iraqi, an Iraqi Kurd who is believed to have been one of Osama bin Laden’s closest advisers.
C.I.A. officials said that Mr. Iraqi produced valuable intelligence, despite the fact that C.I.A. interrogators at the time were only authorized to use the techniques approved for Pentagon interrogators.
External link: http://www.nytimes.com/2007/07/21/washington/21intel.html