Washington – Last week the Supreme Court ruled that Guantanamo Bay detainees could challenge their detention in federal court. Now it's up to the federal judges to figure out how that will work.
Judge Royce C. Lamberth, the chief judge of Washington's federal courthouse, met behind closed doors Wednesday with the Justice Department and lawyers for the detainees to hear thoughts on how to move the estimated 200 cases through the system.
But it won't be easy.
Here are some of the questions about the process, about the hurdles that stand in their way, and what the solutions might be.
Q: What are these cases, criminal trials?
A: No. They are known as petitions for habeas corpus. Basically, the detainees say the government has no right to keep them locked up. The Supreme Court has generally upheld the government's right to hold enemy combatants. Government lawyers must present evidence on a case-by-case basis to persuade a judge that each prisoner is being held lawfully.
Q: Why is this so complicated? The cases have already been assigned to judges and have been sitting on the court docket for months and years. Can't they just start holding hearings?
A: No. As the legal fight over Guantanamo Bay played out over the past several years, the cases in Washington have become muddled. Officials believe that, of the 500 or so pending petitions, most are duplicates and there only about 200 detainees. That means some detainees likely have cases pending before multiple judges. The cases can't even begin until people figure out what cases are out there. Plus there are many issues to work out on how the court will handle all the classified evidence needed to consider these cases.
Q: Why is that such a big deal? Courts hear cases involving classified evidence all the time.
A: True, but never in this volume. More law clerks would need to receive security clearance, a process that takes time. The court will need to figure out how it will store the classified information, which likely exceeds its current secure storage capacity. There are strict restrictions on computers that hold classified information, so new computers would probably need to be purchased.
Q: How is this going to work logistically? Will the judges go to Guantanamo Bay? Will the detainees come to Washington?
A: For now, the likeliest solution involves a secure, closed-circuit television feed from Guantanamo Bay to Washington. Court officials don't believe the judges have the authority to sit at Guantanamo Bay or to order detainees transferred onto U.S. soil. Attorneys could argue that latter point, but doing so would probably slow the process as the matter is argued.
Q: Speaking of the process, how long is this going to take?
A: It won't be quick, but the court is considering steps to speed it up. The judges will meet in the next week or so to consider putting one judge in charge of settling preliminary disputes for all the cases. That would create a standard process that could speed things along. It's also possible that some detainees, such as the Chinese Muslims the government has been trying to find a home for, could be grouped together because their cases are so similar. Some attorneys are skeptical of those ideas, though, and want each case to be heard on its own from start to finish.
Q: So what happens now?
A: Lamberth will meet with the attorneys again next week to see what common ground can be reached on procedural and security issues. Then he'll meet with the judges. It's too soon to say when the first hearings will begin.