Guantanamo: Government Says Six Years Is Not Long Enough To Prepare Evidence

At no point are you offered the protection
of the Geneva Conventions (to which your captors are a signatory), which
were designed to prevent the “humiliating and degrading treatment”
of prisoners seized during wartime, and also to prevent their interrogation
(prisoners may be questioned, but any form of “physical or mental
coercion” is prohibited). Moreover, if you struggle to answer the
questions put to you – perhaps because you know nothing about al-Qaeda
or Osama bin Laden – you are not only interrogated relentlessly, you
are also subjected to an array of “enhanced interrogation techniques,”
which contravene the UN Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, to which your captors
are also a signatory.

Now imagine that, after six and a half
years of this imprisonment – in which, unlike convicted criminals
on the US mainland, you have never been charged or tried, and have not
been allowed a single visit from your loved ones – the highest court
in the United States rules, in Boumediene v. Bush, that you have habeas corpus rights; in other
words, the right to know why you are being held. And finally, imagine
that, in response to this ruling, when the judges responsible for establishing
the reviews have ordered the cases to be addressed “as expeditiously
as possible,” and have set a deadline for the government to comply,
your captors turn around and say that, after holding you for up to 2,444
days in Guantánamo, they need more time to prepare a case against you.

You would, I think, be appalled, and
would conclude that the government was specifically dragging its heels
for political purposes, hoping to avoid humiliation ahead of the Presidential
election, and, in particular, hoping to prevent a replay of the verdict
in Parhat v. Gates, the only case reviewed since the Supreme Court
made its ruling in June, in which the judges – two Conservatives and
a Liberal, no less – ruled that the designation of Huzaifa Parhat,
a Chinese Muslim, as an “enemy combatant” was “invalid,” and
lambasted the quality of the government’s evidence as being akin to
a nonsense poem by Lewis Carroll, author of Alice’s Adventures
in Wonderland.

And in this opinion you would, I think,
be correct. When the Supreme Court ruled that the prisoners were entitled
to “a prompt habeas corpus hearing,” and added that, “[w]hile
some delay in fashioning new procedures is unavoidable, the costs of
delay can no longer be borne by those who are held in custody,” it’s
certain that they did not intend, over three months down the line, for
the government still to be dragging its heels. In the immediate wake
of the Supreme Court’s ruling, meetings were scheduled to appoint
judges to review the 250 cases and to set dates for the government and
the prisoners” defense lawyers to file their evidence. On July 11,
the District Court dealing with the reviews “ordered the government
to file factual returns at a rate of fifty per month, with the first
fifty due by August 29, 2008.”

“Just before midnight” on August
29, however, with only 22 returns filed, the government filed an “instant
motion” begging for more time, pleading that it “simply did not
appreciate the full extent of the challenges posed by the extensive
need for classified information in these cases when [it] proposed to
complete the first set of factual returns by the end of August,” and
asking for “partial and temporary relief” from the order of July
11. Specifically, as Judge Hogan noted in the opinion of September 19
(PDF)
from which this article draws extensively, the government asked for
an extension of 30 days. High-ranking figures – the Acting General
Counsel for the Department of Defense, the Assistant Attorney General
for the Civil Division of the Department of Justice, and the Director
of the CIA – explained “the substantial resources and efforts the
government has devoted to preparing factual returns and the risk of
harm to the national security involved in releasing classified information
to persons outside the Executive Branch.”

After noting that delaying the schedule
by a month was neither “partial” not “temporary” relief, Judge
Hogan agreed to grant the government’s motion. He stated that, after
reviewing the declarations, “the Court is satisfied that the government
is not dragging its feet in an attempt to delay these matters beyond
what is necessary to protect the national security concerns associated
with releasing classified information. These cases are not run of the
mill; they involve significant amounts of sensitive, classified information
concerning individuals whom the government alleges were part of or supporting
the Taliban or al-Qaeda or other organizations against which the United
States is engaged in armed conflict.”

However, Judge Hogan also noted that
“the Court grants the government’s motion reluctantly,” explaining
that “it is disappointed in the government’s failure to meet the
schedule the Court adopted based in part on the government’s assurances.”
Citing statements in which the government claimed that it had “attempt[ed]
to meet its goal” and that it would “continue to strive to meet
the 50-per-month requirement,” Judge Hogan added, pointedly, that
the Court was “not merely setting a “goal” for which the government
is to “strive,”” but was, rather, “ordering the government to
produce at least fifty factual returns by month’s end, followed by
at least another fifty more each month thereafter until production is
complete.”

In conclusion, while Judge Hogan recognized
the government’s explanation that, since the Supreme Court ruling,
its “[a]ttorneys and others from multiple agencies have worked long
and hard, nights and weekends,” he reminded the executive that “the
government has detained many of these petitioners for more than six
years, and the time has come to provide them with the opportunity to
fully test the legality of such detention in a prompt, meaningful manner.”

He added, with just a hint of irritation,
that the decision to grant the prisoners the right “to fully test
the legality of their detention through habeas corpus challenges”
was “no bolt out of the blue,” as the government contended, because
the Supreme Court had ruled, four years before (in Rasul v. Bush),
that they had this right. This was, it seems, a barbed comment on the
legislation passed by the government in the wake of Rasul (the
Detainee Treatment Act and the Military Commissions Act), which was
partly overturned – and ruled unconstitutional – in Boumediene.

The Court’s decision will be small
comfort to the prisoners languishing in Guantánamo while the government
does all in its power to avoid exposing its reasons – or lack of reasons
– for holding them, but it shows, at least, that the judges responsible
for reviewing their cases are paying attention.

Andy is the author of The Guantánamo Files: The
Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of
Michigan Press).