Guantanamo ruling seen triggering shift in policy on detainees

WASHINGTON -- The Supreme Court's surprise decision last month to hear the Guantanamo Bay detention cases appears to have prompted major changes in US treatment of terror-related prisoners -- a shift intended to strengthen the Bush administration's contention that it is dealing with detainees in a fair and orderly way so that there is no need for judicial interference in national-security decisions, legal analysts say.

For two years, the Bush administration has been unyielding about its war on terrorism legal policies. Yet since the court's Nov. 10 announcement, change has proceeded at a dizzying pace.

During an appeals court argument on Nov. 17, the Justice Department said for the first time that Jose Padilla, the US citizen who is accused of plotting a radiological bomb attack and has been held without charges since last year, would get access to a lawyer after his intelligence value was exhausted.

On Nov. 21, the Defense Department released 20 of the 660 Guantanamo detainees, saying they had no more useful intelligence. On Nov. 25, it announced a review of military tribunal rules "to incorporate [legal] assurances where appropriate." News reports soon after quoted unnamed officials as saying 100 or more detainees will soon be freed.

The military announced on Monday that it would allow a lawyer to meet with another enemy combatant, US citizen Yaser Esam Hamdi, who has been held without charges for two years after being captured in Afghanistan. Then, on Tuesday, it appointed a defense attorney for Guantanamo detainee David Hicks of Australia, the first foreign enemy combatant to get a lawyer and a sign that a long-delayed tribunals process may finally begin.

"It's interesting that there's this flurry of activity since the Supreme Court decided to hear the Guantanamo cases," said Steven Watt, a fellow with the Center for Constitutional Rights. "A cynic would take the view that this is the government trying to put on a show for the Supreme Court to demonstrate that they are going to give a process that they consider appropriate under the circumstances."

Supporters of the Bush administration agreed that some of the changes were prompted by the court, though they suggested that granting Hamdi a lawyer was not a radical change and may not much improve his chances of overturning the minimal standard for how much evidence the government must show before labeling him an enemy combatant.

"What this does is help to reassure the federal courts that the administration has no intention of holding detainees incommunicado indefinitely, which is the most extreme specter that the administration's critics often raise," said Brad Berenson, former associate White House counsel to Bush. "The court now knows the government means what it says when it claims that this is all about intelligence gathering."

Because the timing of the changes seem to have been influenced by political concerns and judicial deadlines, however, Ken Hurwitz of the Lawyer's Committee for Human Rights objected that "there is no process going on -- they're still just saying `trust us.' "

David Rivkin, who served as associate White House counsel in the first Bush administration, said the influence of these other concerns demonstrates that pressures less formal than a judge's order, such as media scrutiny and the criticism from civil liberties groups, will keep the government honest and so the judiciary need not interfere. "In our political system, even in the absence of highly intrusive judicial review, there are sufficient political and institutional and bureaucratic pressures for the executive branch to move forward on these issues and not to just sort of sit on them indefinitely," Rivkin said.

The "trust us" defense of expanding government power against individual rights has been overwhelmingly upheld by courts in the two years since the Sept. 11, 2001, attacks. Courts have cited deference to presidential judgment to uphold closing deportation hearings for hundreds of people swept up after the attacks; denying of Freedom of Information Act requests for detainee names and how the Patriot Act has been used; holding people without charges as material witnesses; and freezing assets of Islamic charities.

The Supreme Court's willingness to hear the Guantanamo cases, however, has opened the possibility that it may draw a new line of where deference stops. On Tuesday, in the second setback for the government in three weeks, the US Court of Appeals for the Ninth Circuit ruled that people cannot be convicted of violating a 1996 federal law against "material support" for terrorist organizations unless they knew the organizations were involved in terrorist activity.

Now, seeking to avoid further judicial setbacks, the government may be voluntarily changing its policies, analysts said. Soon, they said, the judiciary may move to resolve a question that has emerged since the World Trade Center was destroyed: whether the legal standards of the battlefield or those of the criminal justice system will govern the country.

"People presume that anything that happens with detention or the use of force is governed by the criminal justice system because that is what we've seen all around us since the Civil War," said former Justice Department official John Yoo. "But the military and intelligence agencies feel part of the battlefield is within the United States and so apply very different standards. There is a tension on how to accommodate both that society must figure out."

Charlie Savage can be reached at csavage@globe.com.