Detainees may be moved to U.S.

By John Hendren
Los Angeles Times

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As attorneys for detainees at the U.S. naval base at Guantánamo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, senior administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military's treatment of prisoners in the war on terrorism.

Now, the administration has been left to scramble to develop a strategy for granting hearings to detainees without having to cope with an unwieldy series of lawsuits throughout the nation.

"They didn't really have a specific plan for what to do, case-by-case, if we lost," a senior defense official said on condition of anonymity. "The Justice Department didn't have a plan. State didn't have a plan. This wasn't a unilateral mistake on DOD's part. It's astounding to me that these cases have been pending for so long and nobody came up with a contingency plan."

To avoid ferrying prisoners and government lawyers to federal courts across the country, as might be required, Pentagon and Justice Department officials said they have discussed moving all detainees to a military prison in a conservative judicial district within the United States to enable the consolidation of all the proceedings in one court.

They said possible locations could be Fort Leavenworth, Kan., where there is an Army base with a military prison, or Charleston. S.C., home of the Charleston Naval Weapons Station, which houses the Navy brig.

Another option would be to allow prisoners to file for writs of habeas corpus — a demand for legal justification for their imprisonment — at a makeshift court at the base in Cuba. The Supreme Court left open the possibility of such an option.

Under a third proposal offered Justice Department officials and discussed at a high-level interagency meeting Tuesday, the administration would ask Congress to designate one federal court district to try the cases — most likely Washington, D.C., or the eastern district of Virginia, whose jurisdiction includes the Pentagon, a senior administration official said.

The administration has faced months of criticism over its prisoner-detention program. Critics contend the issue, combined with the prison-abuse scandal in Iraq and this week's rulings, have undermined the administration's contention that it could be trusted to offer detainees "full and fair" justice.

"The 'trust us' era is over," said Joshua Dratel, a New York attorney who is representing Australian detainee David Hicks, one of three detainees who was referred Tuesday to the first military commission proceedings to be held since World War II.

Justice Department spokesman Mark Corallo challenged the view that legal and military planners had failed to adequately consider major setbacks by the high court.
 
"We obviously were prepared for any outcomes," Corallo said. "The Defense Department was already providing some amount of process to Guantánamo prisoners. The court said that is not enough. So now we have to figure exactly what type of process will satisfy their rulings."

But administration officials apparently guessed wrong on how the high court would rule.

An internal Justice Department memo reviewed Tuesday by the Los Angeles Times outlining communications plans in response to high-court rulings on the issue listed two pages of talking points to be used "in case of win," and a page of talking points to be used "in case of win if some sort of process is required" — a partial victory.

Yet, there was no category for action in the event of a broad defeat in the memo, titled "Supreme Court Decision Communications Plan."

And the memo wrongly predicted an outright win in the case Hamdi v. Rumsfeld, involving Yaser Esam Hamdi, a Louisiana-born man of Saudi descent captured in Afghanistan.

"The DOD/DOJ position on the detention of Hamdi will be decided in our favor as a clear-cut POW case," the memo said, although Hamdi was not held as a prisoner of war.

The memo predicted a 5-4 vote in favor of the government in Rasul v. Bush and Al Odah v. United States. Justices in that case, involving 16 Guantánamo detainees seized in Afghanistan and Pakistan, found in the reverse, voting 6-3 that military prisoners who are not U.S. citizens cannot be held without access to American courts.

Other developments:

• The government agreed to throw out all remaining charges against a Saudi graduate student whose terrorism case was seen as an important clash between free speech and the war on terror.

The government said it would dismiss the immigration charges against Sami Omar Al-Hussayen, 34, in return for his dropping an appeal of a deportation order. Al-Hussayen was acquitted early last month in Boise, Idaho, of using his computer skills to support terrorism, along with three other immigration violations, but the jury deadlocked on eight additional charges.

• In a sign of growing concern over Islamic militants' training camps in Pakistan, the Department of Homeland Security has ordered its inspectors at America's largest airports to scrutinize all travelers of Pakistani descent — including U.S. citizens — in an effort to catch terrorist trainees who might attempt to enter the United States, officials said yesterday.