Court: Gitmo Judges Must Get All Evidence

generic guantanamo bay - supreme court CBS/AP

When Guantanamo Bay detainees challenge their status as "enemy combatants," judges must review all the evidence, not just what the military chooses, a federal appeals court ruled Friday.

The U.S. Court of Appeals for the District of Columbia Circuit rejected the Bush administration's plan to limit what judges can review when considering whether the military tribunal acted appropriately.

When detainees are brought before military tribunals, they are not allowed to have lawyers with them and the Pentagon decides what evidence to put forward. If the tribunal determines a prisoner is an enemy combatant, he can challenge that designation in a federal appeals court.

But government attorneys argued that the federal judges only had the authority to review a summary of the evidence put forward during the tribunal hearing. The appeals court ruled Friday that they needed all the evidence.

Without all the information, the court said, deciding whether the tribunal acted appropriately would be like trying to figure out the value of a fraction without knowing both the numerator and the denominator.

"Counsel simply cannot argue, nor can the court determine, whether a preponderance of the evidence supports the tribunal's status determination without seeing all the evidence. Therefore, we presume counsel for a detainee has a 'need to know' all government information concerning his client," not just the portions the government unilaterally decides to present to the tribunal, the justices wrote.

"This is just another legal headache for the Administration, which had hoped the federal courts would be more receptive to these new rules designed to finally process the detainees out of Gitmo," said CBS News legal analyst Andrew Cohen. "And the precise problem the appeals court has identified — a fair evidentiary review — is one the Supreme Court has been sensitive about when it has looked at these Gitmo cases before.

"There is no arguing the rationale of the appeals court — if you are going to have an appeals court review evidence, it has to be able to review all of the evidence and not just some summary offered by one side," Cohen said. "What the feds do argue, though, is that this sort of thorough review would impair national security and perhaps give the detainees more rights than they deserve. So far, that argument is a loser."

The decision is significant because, if the Supreme Court upholds the administration's tribunal system, federal courts will have a broader review of the process than previously proposed.

The case is Bismullah v. Gates.
  • Sean Alfano

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