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Legislation needed to guide Guantanamo judges: District judge

In June 2008, the Supreme Court issued a landmark opinion granting the prison's detainees the right to challenge their confinements in federal court under the centuries-old legal doctrine of habeas corpus. There are habeas challenges from about 170 of the prison's 192 detainees. Judges have ruled in cases involving 41 detainees. They have ordered the government to free 32 prisoners while backing the detention of nine.

Since the Supreme Court ruling, the judges have been making the rules up as they go along.

In recent weeks, the District's former chief judge and an appeals court judge have called on Congress to craft legislation dealing with how to handle the indefinite detention of terror suspects.

The Crime Scene recently sat down with Chief U.S. District Judge Royce C. Lamberth to discuss how judges have been handling issues tied to the U.S. military prison at Guantanamo Bay, Cuba. Lamberth, who was appointed to the bench by President Ronald Reagan, has advocated for new legislation since the Supreme Court's ruling.

Why are judges calling on Congress to take action?

Congress should have enacted some statutory guidance that would have been useful to us. For example -- what is the definition of enemy combatant, which we have had some difficulty with? And what types of evidence does Congress think would be appropriate for us to consider? Those are among the things that would be helpful.

But unless Congress were to enact something this spring, I think it’s too late anyway. We are on track to complete these cases and are moving ahead. ... The longer we have gone through this, we have seen how difficult the questions are that are being presented and how reasonable people can differ in response to the questions. I still would welcome action from Congress, but I don’t anticipate that.

This is not an ideal world, but to have so little guidance. … As a district judge, we are used to applying settled law. Congress enacts a statute, the Court of Appeals or the Supreme Court issues an opinion. But here, nothing is settled. We are creating law as we go. It’s not something district judges are accustomed to doing.

A much better way to create law is for Congress to pass something and for the executive to participate in that legislation. That is what I’ve been trying to say.

At this stage, Congress hasn't seen fit to do that. I understand that in the prior administration, it did not want congressional action -- it wanted to do it all by executive power. I do not know why this administration has not been able to create a legislative proposal.

The Supreme Court issued its habeas ruling in June 2008. Why has it taken so long for these cases to reach hearings?

Many petitioners are seeking additional documents from the government. The government is having a hard time finding all the relevant documents, and then it is going through classification reviews to decide what it can turn over. A lot of the cases are stalled with these discovery disputes. Most of the delay is in trying to work out document problems, so evidentiary hearings [and] merits hearings can be set up.

The other day, you mentioned that you struggled with ordering a detainee held, potentially for life, under the “preponderance of evidence” standard. The judges established that standard, which means the government wins if the evidence tips just slightly in its favor, for the habeas cases. What did you mean by that?

When you know the petitioner is going to be held for the duration of hostilities and hostilities are not likely to end in my lifetime, if not in his own lifetime, we know there is a consequence of our decision that is quite dramatic in terms of an individual’s life.

In criminal trials, we have a standard of beyond a reasonable doubt, which means proof to a moral certainty. I have no difficulty, where I have a jury to find a person found guilty beyond a reasonable doubt to a moral certainty, with sentencing that person to life in prison without parole, if that is what statutes and guidelines call for.

When you’re doing this on a preponderance of evidence, that is a different decision for me to decide if a person should be held, perhaps for life.

Has anything surprised you about the cases? I have noticed that judges, for example, are struggling with how to handle what they believe are coerced confessions.

From the outset, I took the view that if the person claimed his statements had been coerced, then I would have to find that the statement was voluntarily made for me to consider it. The traditional remedy for judges, if you cannot find they were voluntarily made, is to tell the government that you can’t use the evidence, if it cannot provide information about the circumstances of those statements. And so I have ruled that way.

I think it has affected what evidence the government has that it can use and that makes it more difficult for the government when it was relying on those statements because it has had to track down evidence it wasn’t prepared for and had not gathered. Part of the delay is that they are trying to gather other evidence. I don’t think they were prepared for that. This has been a complicated thing.

The Post recently reported that a Justice Department-led task force has concluded that the government should detain about 50 Guantanamo Bay prisoners indefinitely -- without military or civilian trials. They still have their habeas challenges, obviously. Has the Justice Department told you who is in that group?


Would you like to know who they are? I assume it would help you prioritize the cases, so you could concentrate on those that are in serious dispute. In the meantime, the government might release or transfer those it believes can be safely freed.

It would be very helpful for us to schedule those cases first. We do get notices in individual cases that people have been approved for transfer, and we usually get stay motions with those. … I think if you know a person is not going to be approved for transfer, we would give priority to those cases.

I had a meeting with the Justice Department before Christmas where I complained about the lack of information flow to the judges, and I was assured they were going to make efforts to improve that. But I’ve seen no improvement, which is frustrating to all of the judges.

-- Del Quentin Wilber

By Del Wilber  |  February 13, 2010; 5:05 AM ET
Categories:  Del Quentin Wilber , From the Courthouse  
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This is utter stupidity. The US lawyers know exactly how to get everyone off the hook and release them to our streets.

First, you subpoena all US documents, photos and materials generated from US intelligence activities, then disclose all names, methods and knowledge to the world. Then, you concentrate on "torture', causing us further international problems.

Then, you argue procedures, introduce motions, whose purpose is to delay.

Each and every ttrial will cost us $millions in local and regional security. Cities will be bankrupted and eventually, the cost of these Obama ego-rescue show trials will force the US to finance all this nonsense borrowing from the Chinese. They love it, when we are totally dependent on them for the food we eat, the fuel we use and the support of our misguided government.

Keep them in Gitmo until our 99 year lease expires and abandon them there. Let Cuba deal with them. That's a nation smart enough to dispense justice sensibly.

Posted by: clearlycarl | February 16, 2010 9:37 AM | Report abuse

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