- The Washington Times - Saturday, July 21, 2007

The U.S. Circuit Court of Appeals for the D.C. Circuit yesterday ruled that federal judges must review all evidence — not just what the military chooses — when detainees now held at U.S. Naval Base Guantanamo Bay in Cuba challenge their status as “enemy combatants.”

The unanimous ruling by a three-judge panel rejected Bush administration arguments, which sought to limit what judges and the detainees’ attorneys could review when considering whether the Combatant Status Review Tribunal appropriately designated a detainee as an “enemy combatant.”

“In order to review a tribunal’s determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the tribunal,” wrote Appeals Court Judge Douglas Ginsburg in the majority opinion.

“We therefore hold that, contrary to the position of the government, the record on review consists of all the information a tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense,” he said.

Joining Judge Ginsburg in the ruling were Judges Judith Rogers and Karen Lecraft Henderson. Judge Ginsburg was appointed to the bench by President Reagan; Judge Rogers by President Clinton; and Judge Henderson by the first President Bush.

The appeals court ruling included a protective order adopting a presumption that counsel for a detainee “has a need to know” the classified information relating to his client’s case, except that the government may withhold from counsel, but not from the court, certain highly sensitive information.

Judge Ginsburg, in the ruling, said the court “must be able to view the government information with the aid of counsel for both parties; a detainee’s counsel who has seen only the subset of the government information presented to the tribunal is in no position to aid the court.”

The ruling is expected to be considered by the Supreme Court when it decides whether detainees at Guantanamo should have greater access to U.S. civilian courts.

Currently, when detainees are brought before the Combatant Status Review Tribunal, or military tribunal, they are not allowed to have an attorney with them and the Pentagon decides what evidence to put forward.

There is no obligation for the government to turn over evidence that might be used to show the detainee is not guilty.

If the tribunal rules a prisoner is an enemy combatant, he can challenge that decision in the U.S. Circuit Court of Appeals for the D.C. Circuit, although government attorneys have argued that federal judges have the authority only to review the evidence the Pentagon chooses to put forward.

The ruling yesterday came in a challenge brought by eight foreign nationals captured abroad and held at Guantanamo, each seeking review of a tribunal decision declaring him an enemy combatant — which makes them subject to detention for the duration of hostilities. Seven have been held since their capture in Pakistan in 2001.