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Fate of guantanamo detainees debated in federal court { December 2 2004 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2004/12/02/politics/02gitmo.htmlhttp://www.nytimes.com/2004/12/02/politics/02gitmo.html
December 2, 2004
Fate of Guantánamo Detainees Is Debated in Federal Court
By NEIL A. LEWIS
WASHINGTON, Dec. 1 - Could the president of the United States imprison "a little old lady from Switzerland" as an enemy combatant if she donated to a charity not knowing that her money was eventually used to finance the activities of Qaeda terrorists?
Possibly, a government lawyer replied Wednesday to this hypothetical case posed by a federal judge as they wrangled over the limits of a president's powers to detain people he deems enemy combatants and whether the administration has satisfied the requirements set out in a June Supreme Court decision to provide a justification for their detention acceptable to federal courts.
The courtroom of Judge Joyce Hens Green on Wednesday served as the stage for the beginning of what is expected to be a long and bruising second phase of the legal battle over the Bush administration's efforts to keep the fate of the detainees held at Guantánamo Bay, Cuba, in the hands of the military instead of federal judges.
On June 29, the Supreme Court ended the first phase when it ruled against the administration, saying that the detainees, who now number about 550, have some right to challenge their detentions in federal court. But Brian Boyle, a Justice Department lawyer, told Judge Green that the military had satisfied the Supreme Court's ruling by holding hearings at the naval base in which each inmate was given a chance to argue he was not properly deemed an enemy combatant.
"The detainees have been provided a process," and that was all they were entitled to under the ruling, Mr. Boyle argued.
In essence, the ruling laid down the general outlines of a solution as the justices often do, only to leave the details to the lower courts in a second phase of litigation.
The administration has argued, as it did before Judge Green on Wednesday, that the Supreme Court's ruling was only a minor setback, if one at all. Lawyers for the detainees insisted before Judge Green that the government was trying to recycle its old arguments, avoiding the burdens imposed by the Supreme Court and delaying justice for the detainees.
Judge Green, for her part, posed a series of questions to Mr. Boyle, along with a set of hypotheticals, testing the limits of what the Justice Department asserts are the president's broad powers in time of war.
She used the case of the little Swiss lady to delve into how broad the definition of an enemy combatant was. Mr. Boyle, conscious that any hypothetical that begins with "a little old lady" is intended to produce a lenient answer, seemed uncomfortable but said that theoretically the woman could be detained until her intent was determined.
The definition of an enemy combatant, he said, "is not limited to someone who carries a weapon."
"Where is the battlefield?" Judge Green asked, noting that some detainees were not captured in Afghanistan but in places like Africa.
Mr. Boyle said that while the initial war after the Sept. 11 terrorist attacks was fought in Afghanistan, "the United States is now engaged in a broader conflict with Al Qaeda, a terrorist organization that has a global reach."
Judge Green also asked of the hostilities that the administration argues give the president his broad powers, "When will they end?"
Mr. Boyle said, "I wish I could give you an answer."
Judge Green persisted. "Can it last as long as fundamentalists mount attacks on U.S. citizens?" she asked. "Because the issue of duration is of great importance."
Mr. Boyle said that it was a matter of "the discretion of the president to determine that military force should be deferred."
In its ruling, the Supreme Court said that even though the naval base is outside the sovereign territory of the United States, federal judges have jurisdiction to consider petitions for writs of habeas corpus from those who argue that they are being unlawfully held.
The arguments on Wednesday were over the government's motion to dismiss the petitions of 54 detainees for habeas corpus that ask the courts to require the government to justify its detentions. Mr. Boyle's main argument was that the hearings at Guantánamo to determine if someone is an enemy combatant fulfilled the Supreme Court's requirement that there be some fair process in which the government has put forward its reasons for the detentions.
All that is required, he said, "is some evidence to support the classification."
Lawyers for the detainees attacked the hearings, known as Combatant Status Review Tribunals, as wholly inadequate.
Joseph Margulies, one of the lawyers who brought the original case, told Judge Green that the tribunals "make a mockery of the commitment to due process" because the detainees do not have lawyers and cannot see much of the evidence against them, as it is classified. Further, he said that most of the evidence used to justify the designation of someone as an enemy combatant was based on statements by the detainees themselves or by fellow detainees, which he said might have been obtained by torture.
Copyright 2004 The New York Times Company
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