Taking Evasive Action

Today's NY Times notes that charges against five Guantanamo Bay detainees have been dropped by the government, which comes shortly after the dropping of charges against six others.

The dismissed charges included those against a detainee accused of plotting to detonate a radioactive “dirty bomb” inside the United States, accusations that drew international attention in 2002. The dismissal was a retreat by the government facing an aggressive defense in the case.

It came in the same week that administration lawyers changed course in another highly publicized terrorism case, abandoning efforts to prove that six other Guantánamo detainees took part in a 2001 plan to bomb the United States Embassy in Sarajevo, Bosnia-Herzegovina. The moves appeared to be fresh indications of a long pattern of the administration’s making sharp changes in its legal strategy as it encounters resistance to its detention policies. [Emphasis added]

A victory for the detainees? Not hardly. The man in charge of the Gitmo prosecutions maintains that the government has plenty of evidence to convict the detainees and plans to refile charges. In the mean time, all eleven men are still being detained.

So, then, what's the deal? The deal is suggested by the portions I have bolded above. The attorneys for the detainees have mounted a spirited defense, much of it centered in the accusations that the defendants were tortured, or that information which provided the bases for the charges were obtained through the torture of others. The government apparently doesn't want to or cannot rebut those arguments in court, so prosecutors have fallen back to regroup. Because they believe they can hold the detainees forever, with or without charges, they feel they have the time to cook up some new charges for the defense to deal with.

For several years, the Bush administration has shifted its legal approach at pivotal moments in legal confrontations over its detention policy — transferring detainees on the eve of hearings and abandoning legal arguments.

“Every time they get near a court they try and figure out a way to avoid court review or evade a decision that has come down,” said Michael Ratner, the president of the Center for Constitutional Rights, which has coordinated detainees’ cases.

The strategy has worked well in the past, but, in the face of the Supreme Court's decision in Boumediene v. Bush, which held that the detainees are entitled to habeas corpus hearings, that strategy itself might have to be reworked.

And the current administration, which has decided to keep Gitmo in operation until the next one takes over January 20, 2009, has given the prosecutors at least another three months to do so.

90 days.