Federal Courts Write Own Rules On Federal Combatants One year after President Obama pledged to close the Guantanamo Bay prison, 200 detainees remain there. A new study finds judges using wildly different criteria to review the cases — the result of a lack of clear guidelines on issues such as the use of coercion — and how to define an enemy combatant.


Tangle Of Detainee Rules Leads To Court Confusion

Tangle Of Detainee Rules Leads To Court Confusion

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Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia talks about trying terrorists in Article III Courts, at a meeting of the American Bar Association's Standing Committee on Law and National Security. J. Scott Applewhite/AP hide caption

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J. Scott Applewhite/AP

Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia talks about trying terrorists in Article III Courts, at a meeting of the American Bar Association's Standing Committee on Law and National Security.

J. Scott Applewhite/AP

A year ago, a newly inaugurated President Obama announced, "We will close the Guantanamo Bay detention camp and determine how to deal with those who have been held there."

Obama struggled to fulfill that promise before admitting that the detention camp would not close on schedule. White House spokesman Robert Gibbs said Thursday it is not clear when the detention center will close, but he said the president intends to keep his promise.

One challenge to closure involves a court process that began even before Obama took office. In 2008, the Supreme Court ordered the federal district court in Washington, D.C., to begin habeas corpus hearings for Guantanamo detainees.

The hearings are meant to distinguish detainees who are legitimately being held as enemy combatants from those who must be released because they do not pose a threat. In each case, a judge must decide whether the government has proved that a detainee is dangerous.

Now a new study says the rules for those hearings are so unclear that judges are applying different standards — leading to different outcomes.

"It would have helped if Congress had given us a definition of enemy combatant, but they didn't," Judge Royce C. Lamberth said at an American Bar Association breakfast meeting last month. He is the chief judge overseeing the court-ordered Guantanamo trials.

"The Bush administration gave us four different definitions; the Obama administration gave us another definition; each of our courts is deciding for themselves the proper definition," Lamberth said. "Most of us have adopted one definition, but I have one renegade judge that's got another definition."

Benjamin Wittes of the Brookings Institution and Robert Chesney of the University of Texas Law School conducted a detailed study of the opinions in the Guantanamo trials and found that "the judges are playing the role of the legislature," as Wittes described it in an interview. "That is, they are writing the rules of the detention."

For example, Wittes and Chesney say that judges disagree about what it takes for an al-Qaida member to prove that he has severed ties with the terrorist group; judges disagree on how much evidence the government must provide to prove that a detainee is an enemy combatant; and they disagree about whether coercive interrogations permanently taint subsequent confessions by detainees.

"Judges all seem to agree that you can't beat evidence out of people," Wittes said, "but the question of under what circumstances the taint of coercion will continue to preclude new statements seems to divide them very deeply."

When the Supreme Court ordered judges to start hearing these cases, the justices did not provide specific guidelines. Now, according to Wittes and Chesney, some judges are releasing detainees that other judges might keep locked up, "so in a relatively small group of cases, you have dramatically different outcomes according to which judge you end up with," Wittes said.

Appeals courts are supposed to even out these differences and clarify the law, but the appeals court in Washington, D.C., has not reviewed many Guantanamo decisions.

Detainees' lawyers say things are not as chaotic as people think.

"What's going on here is normal; it's routine, it's bread and butter and it's nuts and bolts," says Guantanamo detainee lawyer David Remes of the group Appeal for Justice.

Remes believes judges are evaluating the facts of each individual case and reaching different conclusions, just as in the criminal justice system.

"I'll give you two juries and the same set of facts, and you'll get two different results," he said. "That's human nature. The fact that there's variety or variation in the trial courts is commonplace."

So far, most detainees have won their cases, and judges have ordered them to be released. Both President Bush and President Obama have struggled to comply with those orders.

For example, about half of the nearly 200 men at Guantanamo come from Yemen. Although courts have ordered some of the Yemeni men to be released, the Obama administration has decided that it is no longer safe to transfer detainees home to Yemen.

Since Congress has shown no interest in wading into this fight over legal rules and definitions, it seems the judges in Washington will be left to work through the rest of the Guantanamo cases, in much the same way as they've done until now.