New York Times
February 13, 2002

Special Legal Team Formed to Handle Detainee Suits


WASHINGTON -- The Justice Department has created a special team of lawyers headed by Solicitor General Theodore B. Olson to oversee all court challenges to the government's policy of detaining terrorism suspects indefinitely on an American military base in Cuba, administration officials said today.

The move, they said, reflected the determination of Attorney General John Ashcroft to use the government's most experienced lawyers to block any legal challenge that might force changes in the policy, which has been criticized by civil liberties groups and some constitutional scholars.

Under the arrangement, federal prosecutors based outside Washington, who would normally handle the cases if they arose in their jurisdictions, will refer them directly to Mr. Olson's team.

"The feeling was we needed to do this because the stakes are so high," said a department official in Washington, speaking on condition of anonymity. "These are national security issues. Fortunately, these are the sorts of issues that come up only every third generation or so."

Justice Department lawyers based in Washington are expected to travel around the country to handle the court challenges as they are filed on behalf of the Taliban and Qaeda prisoners being held at the military base at Guantánamo Bay.

The first of the legal challenges is pending at a federal courthouse in Los Angeles, brought on behalf of the Guantánamo Bay captives by a coalition of civil liberties and religious groups.

Civil liberties groups have accused the Bush administration of ignoring fundamental due process rights for the detainees and of holding them in inhumane conditions.

The administration has insisted that it is acting in accordance with international law, that it is treating the prisoners humanely and that a 1950 Supreme Court decision involving German prisoners seized at the end of World War II makes clear that American civilian courts do not have jurisdiction over foreign prisoners like those now being held in Cuba.

The creation of Mr. Olson's legal team is almost certain to result in friction with United States attorneys around the country, who normally represent the Justice Department in their communities. Some have already complained that Mr. Ashcroft has centralized too much authority in Washington since the Sept. 11 terrorist attacks.

Officials said the choice of Mr. Olson was a natural one, since as the Justice Department's chief advocate before the Supreme Court, he also serves as one of the department's key legal strategists.

Mr. Olson also has a personal connection to the issue; his wife, Barbara, a lawyer and television commentator, died on the American Airlines jet that crashed into the Pentagon on Sept. 11.

Justice Department officials said the idea of a special Washington- based team to handle the court challenges was first discussed last month. Since then, they said, a dozen department lawyers have been assigned to the team, along with lawyers from the State Department and the Pentagon.

"The idea was to put together a team that could come up with a coordinated response on these suits as they arise, and they may arise on relatively tight deadlines," one official said. "There certainly are going to be some novel arguments raised that we haven't dealt with before. And any time you face a novel argument, you need some creative thinking."

The judge in the Los Angeles court case, A. Howard Metz, has already said he has `'grave doubts" about whether he has jurisdiction over the prisoners held at Guantánamo Bay.

In court filings last week, Justice Department lawyers cited the 1950 Supreme Court decision, which held that the German prisoners could not file habeas corpus petitions in American courts because they had been taken to an American-run prison in occupied Germany and had been held outside sovereign territory of the United States.

The next hearing in the Los Angeles case is scheduled for Thursday, and the Justice Department will be represented by Paul D. Clement, Mr. Olson's principal deputy in Washington.

The Bush administration announced last week that it decided that the Geneva Convention applied to Taliban prisoners held in Cuba but not to detainees belonging to Al Qaeda. It said that although the United States did not recognize the Taliban as the legitimate government of Afghanistan, Afghanistan was still a party to the convention. Al Qaeda, it said, is an international terrorist group, not a party to the treaty and therefore undeserving of inclusion.

The announcement means that the Taliban prisoners will have legal rights that will be denied to the Qaeda members. Both groups have been denied prisoner-of-war status, which allows the United States to try them before military tribunals.

Copyright © 2002, New York Times Company. All rights reserved.

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