Broad new challenge to military panels
on Jun 7, 2007 at 10:12 pm
Three days after two military judges raised new questions about the actions of military panels that decide on continued detention of Guantanamo Bay prisoners, lawyers for detainees on Thursday mounted a broad attack on those panels, arguing that they are being operated in violation of Pentagon rules. They also argued that the Bush Administration must disclose much more about how those panels work, in order for the civilian courts to judge their legality. And they asked for a chance to directly question under oath a high Pentagon official in the process.
The new filing came in the D.C. Circuit Court in a pair of cases in which that Court is sorting out how it will review the decisions of those military panels — technically labeled “Combatant Status Review Tribunals” — CSRTs..” The cases are Bismullah v. Gates, 06-1197, and Parhat v. Gates, 06-1397; the Circuit Court held a hearing on those cases May 15. The new filing can be found here.
At this stage, the Circuit Court is not judging the legality of the CSRTs’ decisions that Guantanamo detainees remain “enemy combatants” and thus cannot be released. Rather, it is pondering how it will go about examining the work of those panels, using review powers granted by Congress in the Detainee Treatment Act of 2005. It also will be judging how much access lawyers will have to detainees during the DTA review process, and how much information the Pentagon must share with detainees’ lawyers and with the Circuit Court as the review moves on to focus on the merits of what the panels have done.
Judges on the Circuit Court at the hearing May 15 probed at length into what information the CSRTs are provided in weighing combatant status of the detainees, and what part of the government’s apparently vast files on detainees will be available to the lawyers and to the Circuit Court itself. Afterward, Bush Administration lawyers filed a lengthy statement by a key official on detianee affairs, retired Rear Adm. James M. McGarrah, describing the preparation of cases before the CSRTs.. (A post discussing the “McGarrah declaration” can be found here.)
It was in response to McGarrah’s statement that detainee lawyers made their new filing on Thursday. “The McGarrah Declaration’s revelations are startling, and yet the document is replete with omissions, gaps, and lacunae,” the lawyers argued. “The government took 16 days to draft the declaration, and it bears all the hallmarks of careful management by lawyers. Where detail might be troubling, generalities are provided; where the full picture might be damaging, only half is set out.” But what is revealed, they contended, is that the CSRTs are getting only “pre-packaged” information, and the CSRTs are not being given full access to all information that would be favorable to a detainee’s status.
The lawyers argued that the McGarrah Declaration’s contents and omissions lead to three conclusions: first, that the government has asked the Circuit Court “to presume facts that were not true;” second, that the Circuit Court “cannot meaningfully review these cases” on the basis of the information the government has so far provided, so there must be compelled further disclosures; and, third, that “the CSRTs did not follow their own procedures” — and that bears heavily upon whether they have been operating legally.
Thus, they contended that the Circuit Court should promptly issue an order that both assures lawyer access to their detainee clients, and compels the government to provide far more revelations about the CSRT process and the records before such panels — and the data withheld from them — than the Pentagon has been willing to provide so far.
The new filing provides a list of the kinds of information that the lawyers argued was not even mentioned to the Circuit Court at its hearing May 15. For example, it says, “on May 15 no one told the Court that exculpatory evidence was withheld” — either by those preparing records for the CSRTs to consider, or by the official responsible for putting data before the CSRTs (the so-called “Recorder”).
The lawyers told the Court that they do not oppose the filing of the McGarrah statement, but argued that the retired admiral “should be deposed” within 15 days on the issues that his declaration raises. “The McGarrah Declaration,” they added, “goes to the heart of the issues in this case, and therefore it is particularly important that the Court and [Bismullah and Parhat] have a fuller understanding of facts thus far known only by the government.” Only by questioning McGarrah, they said, can they get the information necessary to provide the Court with “an accurate picture of the actual CSRT process” and thus the question of whether those panels were operating legally. “It is inconceivable that the Court should — or even can — rely on the one-sided generalities of the McGarrah Declaration,” the attorneys concluded. “The government has offered Admiral McGarrah as a witness, and Petitioners should be allowed to cross-examine him.”
The lawyers also asked the Circuit Court to lay down a new briefing schedule to enable it to rule promptly on the merits of the detainees’ challenges to the CSRT findings that they must remain confined at Guantanamo.
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