WASHINGTON – The Bush administration wants to rewrite the official evidence against Guantanamo Bay detainees, allowing it to shore up its cases before they come under scrutiny by civilian judges for the first time.
The government has stood behind the evidence for years. Military review boards relied on it to justify holding hundreds of prisoners indefinitely without charge. Justice Department attorneys said it was thoroughly and fairly reviewed.
Now that federal judges are about to review the evidence, however, the government says it needs to make changes.
The decision follows last week's Supreme Court ruling, which held that detainees have the right to challenge their detention in civilian court, not just before secret military panels. At a closed-door meeting with judges and defense attorneys this week, government lawyers said they needed time to add new evidence and make other changes to evidentiary documents known as "factual returns."
Attorneys for the detainees criticized the idea, saying the government is basically asking for a last-minute do-over.
"It's sort of an admission that the original returns were defective," said attorney David Remes, who represents many detainees and attended Wednesday's meeting. "It's also an admission that the government thinks it needs to beef up the evidence."
Justice Department spokesman Erik Ablin declined to comment on the plan. The discussions were confirmed by several attorneys and officials who attended or were briefed on the meeting with the judges and defense lawyers.
"It's a totally fishy maneuver that suggests that the government wants, at the 11th hour, to get its ducks in a row," said Jonathan Hafetz, an attorney representing several detainees. He was briefed on the plan.
The documents include the government's accusations and summaries of the evidence that was presented to the military review panel. The records were filed in federal court in many detainee cases in 2004 and 2005, before Congress stripped those courts of the authority to hold hearings.
Detainees' attorneys who have reviewed the records criticized much of the evidence as hearsay cobbled together from bounty hunters and border guards who accused people of being terrorists in exchange for reward money.
At Guantanamo Bay, the traditional rules of evidence do not apply in trials run by the military. In a Washington federal courtroom, they would.
The government wants to submit new records, which would allow it to add new intelligence and expand its reasoning for holding the detainees. Since the hearings will decide whether the detainees are lawfully being held now — not whether they were lawfully being held over the past several years — the government wants to provide the court its newest, best evidence.
It will be up to federal judges to decide whether the Justice Department can rewrite those documents.
The question is part of a broader dispute over what the upcoming hearings will look like. Attorneys for the detainees want judges to review all the evidence and decide whether each prisoner should be released. The government believes the judges should look only at limited evidence prepared by officials at Guantanamo Bay.
That's why defense attorneys are troubled by the idea that authorities now want to rewrite that evidence. If the court limits arguments to just the government's record, and gives the government a chance to improve that record, they believe the detainees' chances will be hurt.
"They're not just talking about making a little supplement where they've learned something new," said attorney Charles H. Carpenter, who was in the meeting. "They're talking about possibly amending every single one."