update on GTMO habeas litigation

* GTMO habeas litigation update

Lyle Denniston at SCOTUSblog provides a valuable summary (along with links to the underlying documents) of the government’s effort to modify the case management order issued by Judge Hogan in connection with some 200 GTMO habeas petitions.  Note that one of the critical issues concerns the scope of the government’s disclosure obligations: must the government review all information in possession of all government agencies in order to identify potentially relevant information to be disclosed to the detainee, or is the obligation limited to the subset of that information that was reviewed by the attorneys working on responses to the habeas petitions?  This issues parallels the “prosecution team” question that complicates Brady and related disclosure requirements in the context of criminal prosecution.  The scope of the obligation is not entirely certain in that more familiar setting, and still less so in the GTMO habeas context.

Lyle’s post:

Sweeping challenge to detainee process

(NOTE TO READERS: Because the court filings described here are expansive and detailed, the following is an entirely new report, rather than a revision or updating of an earlier post, which can be found below.)

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Arguing that it would “take months to fulfill” new duties imposed on the government in cases involving some 200 Guantanamo Bay detainees, and protesting orders to make “dramatic” new disclosures of government secrets, the Justice Department on Tuesday night urged a federal judge to cast aside major parts of a recent order laying out how those cases will be processed in court.

As an alternative — and apparently the preferred step — the Department suggested that the case be sent immediately to the D.C. Circuit Court to consider quickly the sweeping challenge.

If the 113 cases involving some 200 prisoners have to go forward first in District Court, the new filing said, that could produce an “entirely unwarranted” situation of reverses on appeal “months from now” and “only after volumes of classified information have been unnnecessarily disclosed.”

The multi-faceted attack on the system of District Court habeas review — being carried out under the Supreme Court’s ruling on detainees’ rights last June in Boumediene v. Bush — had a close parallel in the government’s attempts to pare down another form of civilian court review of detention decisions under the Detainee Treatment Act of 2005. The latter effort, however, has foundered, and now the government is seeking to shut down the DTA process altogether, leaving only the habeas cases.

The Department suggested that the procedures laid out for the habeas cases conflict in “important respects” with the Supreme Court’s call in a 2004 detainee decision for a “prudent and incremental process,” quoting Hamdi v. Rumsfeld.

The new filing came in four parts: first, a motion to clarify and reconsider key parts of a Nov. 6 “case management order” issued by Senior District Judge Thomas F. Hogan or, in the alternative, a motion to send the case to the Circuit Court along with a delay of specific parts of the Hogan order, second, a set of proposed orders; third, a series of sworn statements by Pentagon and intelligence officials on the risks to national security; and, fourth, a sworn statement on national security risks by FBI Director Robert S. Mueller.  Also filed, but not made public, were secret statements from intelligence and military officials.

Judge Hogan has been working since July 2 to coordinate scores of Guantanamo habeas challenges, with the aim of working out procedures that would govern the cases as they returned to other District judges for actual decision on whether an individual’s continued detention was justified.  After weeks of studying the issue, Hogan on Nov. 6 issued his most significant order, detailing the way the cases are to go forward.  The order led detainees’ attorneys to expect that, five months after the Supreme Court decision, the habeas cases would start to move toward final rulings.

Since then, at least five other District judges have adopted all or major parts of Hogan’s order to govern how they will handle cases assigned to them for rulngs on the merits.  The Justice Department protested on Tuesday that some of those other judges have gone considerably further than Hogan did in requiring the sharing of information with detainees and their attorneys.

The Justice Department, saying it was “mindful of the Supreme Court’s desire that ‘prompt’ habeas review be provided to the detainees,” and vowing to “mobilize” additional resources to try to satisfy the Hogan order, said it was troubled that the order is unclear and thus may “create obligations that realistically cannot be met” in the two-week time span set up by the order.

The plea for reconsideration and clarification targeted four main parts of the order.

First, it asked that obligations on the Pentagon and intelligence agencies to turn up and hand over information that might aid the detainees’ challenges should be modified to require disclose only of such information that has been reviewed by government lawyers preparing justifications for detention.

Second, it asked that Judge Hogan wipe out a requirement that the government hand over to detainees any documents or statements that relate to the justifications for detention, or, at least, to limit sharply that obligation.

Third, it requested that the judge reconsider requirements to share classified information or an “adequate substitute” with detainees and their lawyers, limiting those obligations significantly.

And, fourth, it asked the judge to modify the merits hearings, to give a stronger “presumption” in favor of the government’s evidence to justify detention, to allow more hearsay evidence to be used, and to relax a requirement for hearings on evidence so that it does not assure a hearing “in nearly every case.”

Added to those requests was a plea to stretch out some of the time deadlines Judge Hogan set.  It objected to “simultaneous, unstaggered deadlines.”

While 32 of the 38 pages in the main new filing were devoted to a detailed discussion of the changes the government wants in the “case management orders” by Hogan and other judges, the document also argued energetically for the alternative of allowing an immediate appeal if the changes sought are not forthcoming.

While the management orders involve “procedural determinations,” the alternative discussion said, they amount to “controlling questions of law” that will “significantly impact” how all of the habeas cases are processed.

Without significant alteration, it added, the orders “will not only be tremendously burdensome but will require the arguably inappropriate disclosure of senstive classified information.”

The government, it commented, “should not be faced with the choice of providing sensitive classified information unnecessarily or continuing its detention of persons determined to be enemy combatants….Thousands of classified documents may be subject” to the disclosure requirements, it said.

Even the issue of deadlines, the motion said, is “a controlling question of law” because it amounts to a test of “whether the government is entitled to a meaningful opportunity to be heard in these cases.”

The filing said that all of the detainees’ lawyers contacted about the new maneuvers said they would oppose it or needed more information; it added that it did not hear from any counsel who was unopposed.

Detainees’ counsel presumably will have a chance to respond before Judge Hogan and other judges act.  Because the Hogan order now does not stand alone, the Justice Department plea probably will have to be considered also by other judges who have changed or adopted that order.

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