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Appeals Court: Judges Must Review All Evidence, Not Just the Evidence the Military Chooses
USA Today/AP
February 2, 2008

WASHINGTON (AP) — A federal appeals court refused Friday to reconsider a ruling broadening its own authority to scrutinize evidence against detainees at Guantanamo Bay.

The decision is a setback for the Bush administration, which was displeased by the court's three-judge ruling in July and had urged all 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit to review it. The administration said the decision jeopardized national security.

The ruling held that, when Guantanamo Bay detainees bring a court challenge to their status as "enemy combatants," judges must review all the evidence, not just the evidence the military chooses.

After criminal trials, appeals courts are limited in what evidence they can review. But hearings at Guantanamo Bay are not trials. Detainees are not allowed to have lawyers and the Pentagon decides what evidence to present. And unlike in criminal trials, the government is not obligated to turn over evidence that the defendant might be innocent.

"For this court to ignore that reality would be to proceed as though the Congress envisioned judicial review as a mere charade," Chief Judge Douglas Ginsburg wrote Friday.

If the military reviewers designate a prisoner an enemy combatant, the prisoner can challenge that decision before the appeals court in Washington. The court was divided 5-5 on whether to reconsider its earlier decision. A majority of judges must vote to reconsider a ruling as a full court.

The Supreme Court is watching the case as it considers a landmark case challenging whether the military tribunal system is unconstitutional. With the high court waiting, it would not be in the public's interest to reconsider the case and risk delaying a Supreme Court decision, Judge Merrick Garland wrote.

Judge A. Raymond Randolph issued a stern retort.

"We think that it is more important to decide the case correctly," Randolph wrote on behalf of the dissenting judges, "and that a correct decision would be of more assistance to the High Court."

It is unusual for judges to issue written opinions when denying such requests. The decision to issue a multiple written opinions underscores both how important and contentious the issue is.

The Justice Department did not immediately comment on the decision.

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