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.
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Tangle Of Detainee Rules Leads To Court Confusion

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Tangle Of Detainee Rules Leads To Court Confusion


Tangle Of Detainee Rules Leads To Court Confusion

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This is MORNING EDITION from NPR News. Im Renee Montagne.

One year ago, a newly inaugurated President Obama made this announcement.

President BARACK OBAMA: We will close the Guantanamo Bay detention camp and determine how to deal with those who have been held there.

MONTAGNE: Today was the target date for closing the camp, and Mr. Obama struggled to fulfill that promise before admitting it would not close on time. There are now nearly 200 men at Guantanamo. Closing the prison involves a legal process that started before President Obama took office.

The Supreme Court, in 2008, said detainees could challenge their imprisonment. Judges are having a hard time figuring out which rules to follow. NPRs Ari Shapiro reports.

ARI SHAPIRO: Im standing in front of the federal courthouse here in Washington, D.C. And about a year and a half ago, the Supreme Court opened these courthouse doors to Guantanamo detainees. Ever since, in one case after another, lawyers for the detainees have been coming before judges in this court house and asking the judges to answer the same question: Is this detainee an enemy combatant, or does the United States have to release him? Only problem is, theres no consensus about the definition of enemy combatant.

Judge ROYCE C. LAMBERTH (Chief Judge, Guantanamo Trials): It would have helped if we had had Congress give us a definition of an enemy combatant, but they didn't.

SHAPIRO: The chief judge overseeing these court-ordered Guantanamo trials, Royce C. Lamberth, spoke at an American Bar Association breakfast last month.

Judge LAMBERTH: The Bush administration gave us four different definitions. The Obama administration gave us another definition. Each of our courts is deciding for themselves a proper definition. Most of us have adopted one definition, but I have one renegade judge that's got another definition, and, you know, were doing what we can.

Mr. BENJAMIN WITTES (Brookings Institution): The judges are playing the role of the legislature - that is, they are writing the rules of the detention.

SHAPIRO: Benjamin Wittes of the Brookings Institution has coauthored a detailed study of the opinions in the Guantanamo trials. He found that from one to judge to another, the trials are operating under different standards.

Mr. WITTES: They are the building blocks, the basic rules of any detention system. And they are completely in flux.

SHAPIRO: For example, Wittes says 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 needs in order to prove that someone is an enemy combatant. And they disagree about the kind of evidence thats allowed at these hearings.

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

SHAPIRO: When the Supreme Court ordered justices to start hearing these cases, they did not provide specific rules. And now, Wittes and his coauthors conclude, some judges are releasing detainees that other judges might keep locked up.

Mr. WITTES: So you have, in a relatively small group of cases, dramatically different outcomes, according to which judge you end up with.

SHAPIRO: Appeals courts are supposed to even out these differences and clarify the law, but the appeals court has not reviewed many Guantanamo decisions. Detainees' lawyers say things are not as chaotic as people think.

Mr. DAVID REMES (Attorney, Appeal for Justice): What's going on here is normal. It's routine. It's bread and butter, and it's nuts and bolts.

SHAPIRO: David Remes of the group Appeal for Justice has represented many Guantanamo detainees. He believes judges are evaluating the facts of individual cases and reaching different conclusions, just as in the criminal justice system.

Mr. REMES: I'll give you two juries and the same set of facts, and you'll get two different results. One will convict, the other will acquit. That's human nature. The fact that there's variety or variation in the trial courts is commonplace.

SHAPIRO: 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 fulfill those orders.

Since Congress has shown no interest in wading into this fight over legal rules and definitions, it seems the judges here 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.

Ari Shapiro, NPR News, Washington.

MONTAGNE: And you can read the new study of these Guantanamo rulings at our Web site: npr.org.

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