Detainee litigation continues to put pressure on the administration to make detention

* Detainee litigation continues to put pressure on the administration to make detention policy decisions now rather than in 6 months

First, an update on the # of GTMO detainees.  It appears the correct current count is 242.  See here, thanks to the most up-to-date data developed by Ben Wittes and the folks at Brookings.

Second, a flurry of opinions and orders by district judges dealing with detainee litigation suggests that the Task Force(s) created by yesterday’s executive orders had better work much faster than their 6-month schedule would otherwise allow.  The litigation docket will force hard decisions soon in these and related cases, barring a willingness by these judges (or the detainees) to let the habeas process pause for half a year while the issues are sorted out:

Hamlily v. Obama (D.D.C.) (GTMO); Maqalah v. Gates (D.D.C.) (Bagram)

Notwithstanding yesterday’s executive orders, and notwithstanding the fact that the Obama administration has moved successfully to stay GTMO habeas proceedings at least momentarily before one of the judges handling GTMO habeas petitions, other proceedings continue forward, and in doing so they pressure the administration to make tough decisions now regarding the scope of the military detention authority it may wish to defend, rather than waiting for the completion of the “task force” reviews contemplated in yesterday’s orders.

Yesterday Judge Bates issued a series of orders in opinion in both GTMO habeas cases and in Maqalah v. Gates, the habeas case that attempts to extend Boumediene to Bagram Airbase.  In Hamlily v. Obama, a GTMO case, Judge Bates invited the Obama administration to revise the government’s position on the substantive scope of the government’s military detention authority (the Bush administration’s position, adopted by Judge Leon in the habeas petitions before him, was that the CSRT definition of “enemy combatant” sufficed).  And in Maqalah, Judge Bates cited his Hamlily order and invited the government to refine its positions re Bagram detention as well.

The Maqalah order gives the government until the 20th to decide whether it wants to revise its position, at which point a new briefing schedule would be set up.  Presumably this could give the administration at least two months, maybe three, before it has to put into print its position.  And in Hamlily, any revised position must be submitted  by February 9.  Those Task Force(s) better work fast!

Ahmed v. Bush (D.D.C.) (GTMO)

Judge Kessler, on the 21st, set a deadline of January 29th for both petitioner and the administration to submit a definition of “enemy combatant” in this case.

Zaid v. Bush (D.D.C.) (GTMO)

Meanwhile, in Zaid v. Bush, another GTMO case, Judge Bates rejected the government’s position (advanced by the Bush administration) that it need only produce to the petitioner the particular versions of his own statements that the government actually plans to rely on in defending his detention.  Judge Bates disagreed:

A petitioner may assert that he never said what the government claims he did or that he only said what he did because he was coerced. A petitioner making a colorable claim to that effect cannot be denied the best evidence of what he said and the circumstances under which he said it merely because the government — which has sole possession of that evidence — thinks that it is too burdensome to locate it. As a first step in this process of basic fairness, then, the government must identify what potentially relevant materials exist.

For these reasons, it is again hereby ORDERED that respondents shall inform the Court, now by not later than 5:00 p.m. on February 4, 2009, whether respondents possess any of the

following materials with regard to the “statements” of petitioner that they have produced:

1. Audio recordings of statements made by petitioner;

2. Video recordings of statements made by petitioner;

3. Transcripts of statements made by petitioner;

4. Contemporaneous notes taken during any interrogation of petitioner; or

5. Records or reports of petitioner’s statements made by persons other than the persons who prepared the summaries of petitioner’s statements already produced.

Respondents have often replied to this Court’s orders with eleventh-hour requests for enlargements of time or explanations why compliance is impossible or ill-advised. Respondents should not expect a sympathetic reception from the Court should they invoke that approach once again.

Taher v. Bush (D.D.C.) (GTMO)

Judge Kessler issued an order yesterday requiring that discovery proceed in this GTMO habeas case, with certain disclosures from the government due on Feb. 6.

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