Judge Says Government Must Justify Custody at Guantanamo

Charges for Detainees Ordered

A federal judge yesterday ordered the government to justify why it has been holding detainees in a U.S. military prison in Guantanamo Bay, Cuba, for nearly three years without charges and explain why they should not be released.

In a move designed to break stalled negotiations over when the detainees will have their day in federal court, U.S. District Court Judge Joyce Hens Green said the Defense Department must provide the charge or factual basis for detaining each of the 60 detainees who have sued the government, starting immediately and finishing by Oct. 18.

The judge also gave the administration an Oct. 4 deadline for filing written arguments on why each of those detainees should not be released.

Green’s order was the first public sign of movement in the case since the Supreme Court ruled three months ago that the alleged al Qaeda and Taliban fighters detained at the prison have the right to contest their imprisonment in U.S. courts.

The government began transferring hundreds of men captured in the Afghan war to the U.S. Navy base on Guantanamo in early 2002, accused them of being “enemy combatants” and contended that it was not required to formally charge them or allow them to see attorneys. Officials cited security concerns in holding the detainees incommunicado.

But the Supreme Court disagreed in its June decision and several dozen detainees have since filed suit in federal court in Washington, demanding hearings.

For the past few months, attorneys for the detainees and government have argued over the procedures under which attorneys could visit their clients, whether the conversations would be monitored and whether each detainee would be allowed more than one visit. In the meantime, the government has begun to move forward with the trials of four detainees through “military commissions” and has charged a few others.

Green expressed concern in yesterday’s written order that the series of private conferences between the opposing attorneys in August and September have not produced significant progress.

She wrote, “There appears to be some confusion,” about the specific time by which the government is obligated to provide the reasons for detaining individuals who have sued in court. Those explanations were supposed to start being furnished by Sept. 8, but attorneys said the government has provided them in only two cases.

Green also expressed frustration that she learned of the government’s release of 35 detainees to Pakistani authorities from a newspaper story, and ordered the Pentagon to give her advance notice of any future plans to free captives. She also set a public hearing on Oct. 13 to discuss any remaining disputes.

A Defense Department spokesman said yesterday evening that he was not able to comment on the order because he had not reviewed it.

Attorneys for the detainees just a week ago wrote a joint letter to Green complaining about the stalled cases, and yesterday they applauded her move.

Michael Ratner, president of the Center for Constitutional Rights and co-counsel for several detainees, said he expects that the cases will be debated in open court instead of in private meetings between the judge and attorneys, a prospect he welcomed.

“These are big public attention cases, they deserve to be out in the open,” Ratner said. “The government has had three months since the Supreme Court mandated that . . . the government explain why our clients have been detained. Now that it’s in the open, how long can the government get away with this?”

Tom Wilner, an attorney for a group of Kuwaiti detainees, and Brent Mickum, an attorney for several other prisoners, said they are hopeful the order will produce progress.

“After almost three years, it’s high time the government should be required to say why it’s holding people,” Wilner said. “How the heck can you hold somebody without saying why you’re holding them?”

Staff writer John Mintz contributed to this report.

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