Judge opens first habeas corpus hearing on Guantánamo detainee

After years of legal clashes over whether detainees have the right to contest their detention in court, a federal judge on Thursday opened the first hearing into the government's justification for holding suspects at the naval base at Guantánamo Bay, Cuba. But after opening statements that did not detail the evidence, the judge, Richard J. Leon of Federal District Court here, closed the courtroom, saying the evidence was classified. The government says the six men whose cases are being heard were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda. "The discussion of these issues will have to take place in a closed courtroom outside the presence of the public and the detainees," Judge Leon said. The hearing is expected to last a week. If the men testify, that "will also have to be behind closed doors because of the sensitivity of whatever it is they might say," he said. In addition, the detainees' lawyers have not been permitted to discuss the classified evidence with their clients, six Algerian former residents of Bosnia who have been held since 2002. Their case was the first to reach a factual hearing since the Supreme Court ruled in June that detainees at Guantánamo are entitled to seek their freedom through federal habeas corpus cases. The justices' ruling, which was named for one of the six Algerians, Lakhdar Boumediene, opened the door for more than 200 habeas corpus claims. Judge Leon, who was appointed by President Bush, initially ruled in 2005 that the men had no habeas corpus rights. The six detainees had been scheduled to listen to opening statements from Guantánamo by way of a telephone hookup, but a technical problem left them with a silent line, court officials said. If they testify, it is to be with a video feed from Guantánamo. After they were detained in 2002, Mr. Bush said the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. But last month Department of Justice lawyers said they were no longer relying on those accusations to justify the men's detention. In an opening statement before the courtroom was closed, Nicholas A. Oldham, a Department of Justice lawyer, said "the United States has reliable information" about the dangers posed by the men. But Mr. Oldham said, "I cannot talk about the evidence here," in the open courtroom. Stephen H. Oleskey, one of the detainees' lawyers, said the men were "victims of a terrible mistake that the government has refused even today to correct." Mr. Oleskey said the government's accusations were based on what he described as ethnic profiling of Muslim men. He said the government could not prove that the men considered going to Afghanistan. But he added, "Even loose talk about plans to travel to Afghanistan would be just that: loose talk." Mr. Oleskey declined to discuss the plan to close the courtroom. But Ramzi Kassem, a lawyer who represents other detainees and who teaches at Yale Law School, said the use of classified evidence was an effort to keep the public from being able to assess the evidence the government has used to imprison hundreds of men. "I think what is happening here," Mr. Kassem said, "is that the government lost its battle to avoid judicial scrutiny, so they have shifted strategy to avoid public scrutiny." A Justice Department spokesman said lawyers in the case had no role in classifying evidence, adding that it had been classified by intelligence agencies "for valid national security reasons–well before preparation for this case even began." Judge Leon, wearing a red and white bow tie set against a blue shirt that peeked through his robes, was the first federal judge to hold a full habeas corpus hearing on a Guantánamo case since the Supreme Court ruling in June. Another federal judge, Ricardo M. Urbina, last month ordered 17 ethnic Uighur detainees released. But in that case, no hearing was needed to establish the reason for their detention because the government conceded that the men were not enemy combatants. A federal appeals court stayed Judge Urbina's ruling pending an appeal. In the case that began Thursday, government lawyers appear to be taking few chances that the men will be freed. They have filed a sealed envelope of evidence with Judge Leon, which the detainees' lawyers have not been permitted to see. In court filings the government lawyers said that if the evidence in the closed hearings was not enough to justify the detention, then the judge should open the envelope. Judge Leon, the filing said, "may very well ultimately face the circumstance where the information justifying detention is too sensitive" to share not only with the detainees but also with their lawyers.