Federal Judge Joyce Hens Green Monday ordered the government to justify why it has been holding 60 detainees at Guantanamo for almost three years without charges, and to show why they should not be released.

U.S. District Court Judge Joyce Hens Green said the Defense Department must provide the charge or factual basis for detaining each of the 60 detainees who have sued the government, starting immediately and finishing by Oct. 18....

Green also expressed frustration that she learned of the government's release of 35 detainees to Pakistani authorities from a newspaper story, and ordered the Pentagon to give her advance notice of any future plans to free captives. She also set a public hearing on Oct. 13 to discuss any remaining disputes.

Last week we wrote about a Guantanamo detainee who after three years imprisonment, became the first detainee to be declared by the military commission not to be an enemy combatant. He will be freed and returned to his home country.

What about the three years he unjustly spent at Camp X-Ray? Is he entitled to compensation? Maybe.

Legal affairs writer Vanessa Blum examines the issue and his possible routes to recovery:

Among the remedies available to detainees released from Guantanamo Bay are suits against private contractors under the Alien Tort Statute, claims against U.S. government officials under the Federal Tort Claims Act, or so-called Bivens actions, which allege civil rights violations by federal agents.

Ms. Blum concludes:

While each legal instrument presents obstacles, recent Supreme Court decisions may strengthen the detainees' hand....While to many the current situation seems less egregious than the imprisonment of Japanese-Americans during World War II, observers on both sides of the Guantanamo issue agree that there is no legal barrier to prevent the government from voluntarily compensating released prisoners.

"It would be very nice if they paid the people released at least as much as they paid the bounty hunters for capturing them," says Shearman & Sterling partner Thomas Wilner, lead lawyer to 12 Kuwaiti detainees at Guantanamo Bay.

Two Army Generals said in depositions and interviews Thursday that the number of prisoners held in Iraq who were hidden from the Red Cross far exceeded a few dozen and may have numbered up to 100.

Army jailers in Iraq, acting at the Central Intelligence Agency's request, kept dozens of detainees at Abu Ghraib prison and other detention facilities off official rosters to hide them from Red Cross inspectors, two senior Army generals said Thursday. The total is far more than had been previously reported.

The Combatant Status Review Tribunal at Guantanamo has decided that one detainee is not an enemy combatant and will be released to his home country. Details about the detainee were not released, only that he has been held at Guantanamo since May, 2002 when he was seized in Afghanistan--over 2 years ago.

Out of 30 hearings, this is the only ruling in favor of a detainee.

The Pentagon has defined an enemy combatant as a person "who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." The other 29 men whose cases were reviewed by these tribunals, which started last month, were determined to be enemy combatants, England said.

ACLU Executive Director Anthony Romero is filing daily dispatches from the military commission proceedings in Guantanamo. Don't miss them.

• Today
• Tuesday
• Monday

[hat tip to Kevin Thurman.]

The first military tribunals are set to begin Tuesday for four Guantanamo detainees. Trials are still several months off, as Tuesday begins the pre-trial hearing phase. Since there has been a big problem with translators, the lawyers will need a lot more time with their clients before trials can begin.

Some of the defense lawyers have complained that problems with their translators, who have not been paid in a timely manner, hampered them in mounting their cases. Mr. Altenburg told reporters that the complaints had merit and he was moving quickly to address them. Commander Sundel said he expected to do little at the coming hearings beyond ask for more time to meet with his client. "We desperately need to speak with him," he said. "The hearing is Thursday and we were only given a new interpreter last week." The first translator was judged inadequate and dismissed in April.

Don't expect too much. It's hardly a real trial.

The rules, which in essence constitute a new body of law distinct from military and civilian law, allow, for example, witnesses to testify anonymously for the prosecution. Also, any information may be admitted into evidence if the presiding officer judges it to be "probative to a reasonable person," a new standard far more favorable to the prosecution than anything in civilian law.

A leading British medical journal has published an article that criticizes the medical ethics of the U.S. military at Guantanamo, Abu Ghraib and in Afghanistan.

U.S. military doctors working in Iraq collaborated with interrogators in the abuse of prisoners at Abu Ghraib prison outside Baghdad, an article in the British medical journal The Lancet said on Friday. Professor Steven Miles, the report's author, cites evidence that some doctors falsified death certificates to cover up killings and hid evidence of beatings. "The medical system collaborated with designing and implementing psychologically and physically coercive interrogations," the University of Minnesota professor said.

The Wall St. Journal (subscription required), reports:

Britain's leading medical journal says U.S. military and coalition health personnel might have violated professional ethics by participating in abusive prisoner treatment in Iraq, Afghanistan and Guantanamo Bay, Cuba. An article in the Lancet's Aug. 21 issue by Steven Miles, a professor of medicine at the University of Minnesota's Center for Bioethics, concludes that "government documents show that the U.S. military medical system failed to protect detainees' rights, sometimes collaborated with interrogators or abusive guards, and failed to properly report injuries or deaths caused by beatings."

The New York Times writes about the abysmal treatment accorded those arrested on material witness warrants in terror cases.

About 60 other men have been held in terrorism investigations under the federal material witness law since the Sept. 11 attacks, according to a coming report by Human Rights Watch and the American Civil Liberties Union. Such laws, meant to ensure that people with important information do not disappear before testifying, have been used to hold people briefly since the early days of the republic.

But scholars and critics say the government has radically reinterpreted what it means to be a material witness in recent years. These days, people held as material witnesses in terrorism investigations are often not called to testify against others; instead, frequently they are charged with crimes themselves. They lack constitutional protections like the requirement that criminal suspects in custody be informed of their Miranda rights. Moreover, they are often held for long periods in the same harsh conditions as those suspected of very serious crimes.

Abdullah al Kidd is one of them. As a result of his arrest and prolonged detention, he lost his marriage, his scholarship and almost his sanity:

The American Bar Association, a group with 400,000 lawyers, is having its annual meeting in Atlanta. A resolution was passed today condemning President Bush's detentions of foreign detainees:

Over the objections of the Bush administration, the nation's largest lawyers group is moving to condemn the government's handling of foreign detainees. A resolution debated Monday by the American Bar Association criticizes what it calls "a widespread pattern of abusive detention methods." Those abuses, it says, "feed terrorism by painting the United States as an arrogant nation above the law."

The ABA was responding to abuse of Iraqis at Abu Ghraib prison near Baghdad and concerns about the treatment of about 600 terrorism suspects being held in Cuba.

A member of the conservative Federalist Society argued against the measure. Thankfully, to no avail:

David Rivkin Jr., a Washington attorney, said the ABA is taking a cheap shot at the administration. "It doesn't take much civic courage to condemn torture," he said during a debate Sunday sponsored by the Federalist Society, a conservative lawyers' group. But Chicago attorney William Hannay III, who helped draft the ABA proposal, called it "the very heart of what the ABA should be doing." Memos by Bush administration lawyers encouraged interrogation methods "not worthy of our country or us as lawyers," he said.

Among the recommendations:

The International Red Cross issued a strong statement yesterday about the abuse allegations made by released British detainees at Guantanamo against their American captors: The Americans may have committed war crimes.

The organisation, which maintains a rigidly neutral stance in public, took the unusual step of voicing its concerns in uncompromising language after the former detainees, known as the Tipton Three, revealed that they had been beaten, shackled, photographed naked and in one incident questioned at gunpoint while in US custody.

Their vivid account of the harrowing conditions at the camp, as told to their lawyers and published for the first time in yesterday's Guardian, has reignited the debate about the treatment of prisoners and the British government's role in their questioning and detention. Last night the Red Cross was joined by the Medical Foundation for the Care of Victims of Torture, which argued that if the allegations were true they indicated systematic abuse, amounting to torture.

If you missed the original report of the Tipton 3's charges, you can read it in yesterday's Guardian. They were captured in Afghanistan, shipped to Guantanamo where they were held for 2 years, and finally released in March with no charges ever being brought against them.

The Wall St. Journal (subscription only) reports that hearings for Guantanamo detainees may begin today. First off, put aside any prior concept you may have about court hearings where there is a judge, a prosecutor and a defense counsel-- and where the defendant has the right to cross-examine witnesses and present evidence. The Administration is holding fast to its belief that it need not provide such protections to the detainees. Here's what they get:

Under the procedure, which went under a dry run yesterday, with military personnel playing the part of detainees, prisoners will appear before a three-man panel of senior officers. That panel will examine the dossiers assembled after hours of interrogations, give the detainees a chance to speak and then determine whether they should be set free. The advocates will be U.S. government employees, who, unlike lawyers, will not be honor-bound to serve the best interests of their client.

Under the current plan, three separate tribunals will hear 72 cases a week so each detainee can get a hearing within four months. Unlike traditional civilian justice, the government will have one big advantage: The burden of proving innocence will rest with the detainees. Detainees won't get lawyers, but "personal representatives," military officials without any legal background, who will offer advice to prisoners, lay out unclassified portions of their dossiers and help inmates make their case to the tribunal.

What if a detainee wants to call a witness to repudiate the charges? It will be very difficult if not impossible:

by TChris

TalkLeft recently asked whether the Bush administration is hiding detainees at undisclosed locations to prevent them from exercising their right to seek review of their detentions, as charged by the International Committee of the Red Cross. When asked about the secret detentions, Scott McClellan provided these direct and illuminating answers on behalf of the administration:

Q Does the President -- does the United States harbor or hold secret detainees who are not available to the International Red Cross?
MR. McCLELLAN: Actually, this is an issue that came up earlier in the week and I talked about it at that point. When it comes to the International Committee for the Red Cross, we work very closely with them on detainee issues, and we --
Q I have a follow-up.
MR. McCLELLAN: Okay -- we stay in close and regular contact with the Red Cross on all the issues related to detainees. And they do, from time to time, raise issues and we work to address those issues directly --
Q Why don't you answer the question? Do we have secret detainees and is it possible that they could be subjected to the same treatment as in Baghdad prisons?
MR. McCLELLAN: We work to address these issues that the Red Cross raises directly with the Red Cross. And any issues that they have, we respond directly to the --
Q That's not the answer to the question.
MR. McCLELLAN: -- Red Cross. We meet with them on a regular basis at a variety of levels, and we stay in close and constant contact with them. And I really don't have anything else to add to this issue.
Q You don't know whether we have secret detainees --
MR. McCLELLAN: Like I said, Helen, I don't have anything else to add to this issue.
Q Why?
MR. McCLELLAN: Go ahead.