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Court lets stand access ruling on Guantanamo hearings

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Feb. 5, 2008  ·   In a long-awaited and potentially significant victory for court access, a divided appeals court Friday…

Feb. 5, 2008  ·   In a long-awaited and potentially significant victory for court access, a divided appeals court Friday let stand a prior ruling preventing the government from limiting what information the courts hear in the trials of detainees being held at Guantanamo Bay, Cuba.

The U.S. Court of Appeals in Washington, D.C, split 5-5 over whether to grant a full rehearing in the case, thereby upholding by default a ruling by a three-judge panel last July in which the Bush administration had argued that national security concerns gave them the power to determine what documents were relevant for judicial review.

The divided appeals court released a 37-page decision, composed of five separate statements discussing the denial of a rehearing by the full court. Each of the five emphasize both the complex issues at hand and the potential implications the decision will have on pending U.S. Supreme Court cases, Boumediene v. Bush and Al Odah v. U.S., which also address detainees’ rights to have their day in court.

Chief Judge Douglas H. Ginsburg, who sat on the original three-judge panel and wrote against review, stated the importance of the government providing all available information in the trials.

Ginsburg, who was joined by Judges Judith Rogers and Thomas Griffith and David S. Tatel, wrote that a detainee currently “has little ability to gather his own evidence, no right to confront the witnesses against him and no lawyer to help him prepare his case.”

Judge Merrick Garland, who wrote separately, stressed that rehearing this case could stall the two cases pending before the U.S. Supreme Court, “As delaying the [Boumediene case] is contrary to the interests of all of the parties, as well as to the public interest, I concur in the denial.”

Those writing in favor of review warned that releasing this evidence may lead to breaches in national security and expressed concern about making a hasty decision on such an important issue.

Echoed throughout all the opinions was the notion of “reasonably available” information. This term was derived from the Combatant Status Review Tribunal regulations, the hearing system set up for Guantanamo Bay prisoners. The judges differed on whether that includes all information the government has compiled or just information it chooses to present to the military tribunal.

Judge Janice R. Brown, in writing in favor of review, stressed the ambiguity of the “reasonably available” phrase as well as the unusually high number of different opinions this case resulted in.

“The denial of rehearing has generated four separate opinions disputing the proper scope of production,” she wrote. “This continuing debate suggests the court has not yet found the right paradigm.”

With 275 detainees being held without charges and 180 of them challenging their statuses, critics continue to denounce the fate of detainees who are held in “legal limbo” while the government argues about how much information it has to turn over.

“The government’s logic is that this isn’t a typical trial,” said Charles Davis, executive director of the National Freedom of Information Coalition in Columbia, Mo. “It is effectively arguing that we’re in a parallel universe – a universe where the common rules of evidence don’t apply.”

Davis said both lawyers for the detainees and the general public may benefit from the decision and its potential impact.

“The public is going to learn a great deal about the nature and merit of the government’s cases against these detainees,” Davis said. “There is going to be a lot of education as a result of this.”

The Justice Department has indicated it plans to appeal the ruling to the U.S. Supreme Court.

(Bismullah v. Gates; Parhat v. Gates)Amy Harder & Alanna Malone

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