Government rebuffed on detainee files
on Jun 10, 2009 at 9:26 pm
 Senior U.S. District Judge Thomas F. Hogan, amid sharp criticism of government legal tactics, has turned down a request by the Obama Administration to restrict detainee lawyers’ access — in virtually all remaining Guantanamo Bay cases — to the files the Administration’s detention task force is assembling on every prisoner remaining at the Navy prison in Cuba. The order implementing his decision can be found here. He had ruled orally from the bench on Tuesday after a hearing, and then put the result into the order he issued Wednesday. (This controversy was discussed in this post.)
 The government had told Hogan in a formal plea that the access issue threatened to disrupt President Obama’s schedule to review all detainees’ situations in time to close the Guantanamo prison entirely next January.
The result, however, was not a complete loss for the government’s efforts to keep the habeas cases in court from getting in the way of the task force’s independent review. What was left, though, did not appear to be promising for the government.
Rather than issue an omnibus order in his role as the coordinating judge for scores of habeas cases, Hogan said he would allow the government to raise the access issue — case by case — with individual District judges preparing to rule on the captives’ challenge to their continued detention.
A group of Hogan’s colleagues on the District bench, weighing those individual challenges, had ordered the government to make arrangements to share with detainees’ counsel what it gathers in the task force review process. The government made clear to Hogan it preferred to have that process go forward independently..
It proposed a consolidated order that would require that detainees either wait until the task force process was complete for that detainee, and thus have their challenges put on hold perhaps for months, or they could opt to go ahead without access to those materials, which could mean they could expect an earlier court decision on their fate.
The detainees’ lawyers strenuously objected. They argued that Hogan had no authority to override the access orders already issued by other judges. They also asked Hogan simply to strike the government’s request without even ruling on it because the government had not followed a local court rule of consulting with detainees’ lawyers over the issue before asking for broad new relief. Hogan refused to do that, but said Tuesday that he would strike future government motions if it did not consult with the other side before offering them.
According to observers who attended the hearing (the blog was not on hand), Hogan said that the government’s request for a sweeping single order was fraught with difficulties, and, if accepted, would restrict a judge’s power to manage litigation. The request, he said, showed a fundamental misunderstanding of the judicial process and of the Executive Branch’s duty to obey court orders.
The individual judges, he said, had considered the potential burden on the government before they issued those orders. The government, he added, could have gone back to those judges to seek more time, but instead chose to pursue a consolidated order to resolve the issue all at once.
Hogan also suggested that the government’s fears of delaying the task force process were exaggerated. In fact, he said, the government could have complied earlier with the other judges’ orders, and not taken the extra time to seek the consolidated order.
Second-guessing the government’s estimate that it would take up to a year to satisfy all of the requests for information from the task force, Hogan said it could be done in six weeks if the government hired enough lawyers to process them.
Hogan reminded the government that the courts’ time demands were as heavy as those on the government and the task force.
