Justice Considers Revisiting Detainee Hearings The lawyers of Guantanamo Bay detainees say the Justice Department appears to be conducting a "massive" repeat of the military's combatant-status hearings. In preparation, the U.S. is building a judicial complex at Guantanamo.

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Justice Considers Revisiting Detainee Hearings

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MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick.

At the terrorist detention center at Guantanamo Bay, the Justice Department is building a massive new judicial complex that is designed so it can be taken apart, packed up, shipped off to be rebuilt elsewhere. More on that in a moment.

First, this new facility is meant to house the coming judicial proceedings for the 330 detainees who are being held at Guantanamo.

Joining us is Dahlia Lithwick, legal analyst for DAY TO DAY and for Slate.com. Welcome back, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate.com): Hi, Alex.

CHADWICK: So news this week that there may be mass reviews of whether the 330 remaining detainees are, indeed, enemy combatants. Some of the prisoners have been in Guantanamo for six years now.

Dahlia, are these the same military tribunals that have been on hold for awhile?

Ms. LITHWICK: No, no, Alex. This is a very different adjudicatory proceeding. It's one that happened much earlier in the process. These are called combat status review tribunals. They're shorthanded as CSRTs, and 558 of them were held at Guantanamo in 2004, 2005.

The purpose of these early proceedings was to, first of all, determine whether or not these prisoners were, in fact, quote, "enemy combatants" that could be held. And then there was another part of it, which was whether they would be going on to face these criminal tribunals that you're talking about.

Now, the important thing about the CSRTs is as many questions as you may have about the fairness of the tribunals of the military commissions, these are perhaps even less fair. That is to say the detainees had no lawyers at them, they couldn't call their own witnesses, and often, they would end up sort of accusing one another.

So there's real question - there always had been - about whether the CSRTs were fair. And in a filing late Friday in a federal appeals court in the District of Columbia, the Justice Department announced that they're considering redoing some of these CSRTs and possibly redoing many of them.

CHADWICK: Really? How many of them are we talking about? And really, going back and reviewing just kind of the basic status of all of these inmates?

Ms. LITHWICK: Isn't that amazing? It's sort of the one-step forward, 12 steps back of the Guantanamo judicial proceedings. Now, first of all, I want to be clear that the Pentagon is now saying that was sort of taken out of context, they're only assessing whether they're going to consider redoing them. But yes, in an appeal before the D.C. federal appeals court that is challenging the issue of whether these CSRTs were, in fact, fair to the detainees, 130 detainees filed this challenge, and that case is pending.

But in a ruling out of that court last July, the court demanded, in effect, that the government disclose almost all the evidence that had been used against the detainees at their CSRTs, and the government is fighting that ruling. Why? They say, first of all, it violates national security; they can't disclose all of those info. Second - oops, the dog ate it - a lot of it they can't find, a lot of it is just missing. And also they're saying that the deadline is just too soon. They couldn't possibly pull all this information together in time to meet the deadline and so with the way to sort of say to the court, we can't do this, they're now saying, in this filing, but we're really considering redoing all of them over again.

CHADWICK: Isn't there a Guantanamo case that's before the Supreme Court? Does this have anything to do with that?

Ms. LITHWICK: Well, not exactly, Alex. That's a different case and that's going to be heard December 5th. That's going to test the constitutionality of the law. You may remember that Congress passed, just about a year ago, stripping the detainees at Gitmo of the right to bring habeas corpus petitions in federal court. So that's a sort of very different case that has to do with whether, in fact, the Congress can strip judicial power.

It does have one effect on that case, though, that we know immediately, which is in that case, one of the reasons the government and the Pentagon said, oh, these detainees don't need all these habeas rights is that the judicial proceedings that came before were very fair and scrupulous. It's a little bit hard to argue that the CSRTs were fair and scrupulous when, in fact, now they're saying we might need to redo them.

CHADWICK: We'll have to redo the whole thing.

All right, Dahlia Lithwick, legal analyst for Slate.com. Thank you for being with us again.

Ms. LITHWICK: It's always my pleasure.

BRAND: If all goes according to plan, that wave of Guantanamo military tribunals will take place at a new judicial complex. It's been nicknamed "Camp Justice," complete with high-tech cameras, a courthouse of corrugated metal and a tent city. By the time it's fully completed, it is expected to accommodate more than 500 journalists, court officials, lawyers and security guards.

Joining us now to talk about that scene is NPR's national security correspondent Jackie Northam.

Hi, Jackie.

JACKIE NORTHAM: Hi.

BRAND: Well, this is actually sort of a temporary operation, right? It's kind of more tent than city?

NORTHAM: Oh, it sure is. I mean, that's the whole idea is that it is not permanent, that it can be assembled or disassembled as needs be. And having said that, though, I mean, as you say do you know, this is supposed to accommodate up to 500 people whether it's journalists or lawyers or court officials, that type of thing. And the courtroom itself, they can do five trials at a time and that, even though it's made of corrugated metal, it is high-tech, you know. They've got enough for the translators, they've got systems in place of classified material comes up, you know, they can cut out the press and other spectators from seeing that.

BRAND: There's one quote in the New York Times story that from a Major Chad Warren, one of the operations officers there, he said if you're an avid camper, it'll be great because there's outdoor plumbing and tents for the - even for the judge.

NORTHAM: Exactly, and then, you know, one of the criticisms, too, is that these are incredibly tense situations because this is sort of, you know, people would argue this is law being made here and that type of thing.

For these lawyers and the judges and everybody else to go through this every day for 10, 12 hours a day and then to come and sit on a cot, you know, filled with other people in the room and to use outdoor facilities and that type of thing, you know, it's tough for them. But at the same time, there is, you know, this was supposed to start off as a $125-million project and it was supposed to have restaurants and hard-wall buildings and everything else like that. And Robert Gates, Secretary of Defense, Robert Gates just said, no way, we're not spending that kind of money. Go back and figure something out. And this is what they've come up with.

BRAND: So it's costing $12 million. But what does it say that they're actually, they're spending $12 million on, as you say, a very high-tech facility with all these cameras and ability to shut down the audio at a moment's notice if classified information's being talked about. But at the same time, we have, you know, outdoor plumbing and tents. There's sort of mixed signals going on here.

NORTHAM: Well, there is. Yes, I mean, this is always the thing when people say, and including President Bush who said he want to see Guantanamo shut down. There's always this big word, but, after it and the fact that you - it's very difficult to shut Guantanamo down. It's difficult to get rid of the people, the detainees. And while they're waiting for that to happen or for something to move that along, they do want - the administration does want to get these trials under way. And so that's why you see these two parallel tracks, which may seem divergent at times, but at the same time, they need to get these trials underway to at least appease a lot of world criticism that these guys are being held without any due process.

BRAND: So Jackie, just the scene there, it sounds, well, a little unprecedented, that you've got 500 people there living in camping conditions.

NORTHAM: Well, that's exactly right. And Guantanamo is a very strange place. I mean, you've got the beautiful Caribbean out there and then you've got this camp on this piece of land right next to it. And where they're going to set up the tent city is right by the old runway in that they've moved the whole operation. When this happens, they're going to move it all onto the side of the base where the detainees are being held. But it is very odd, I mean, because it's such a strange base anyway, and then to have this tent city surrounded by the beautiful waters of the Caribbean.

BRAND: And Cuba is just right there.

NORTHAM: And Cuba on the other side, absolutely, just to add to the, you know, the whole irony here.

BRAND: NPR national security correspondent Jackie Northam. Thank you.

NORTHAM: Thank you very much.

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