Separate track for some detainees
on Jul 2, 2008 at 7:49 pm
NOTE TO READERS: Events have been unfolding rapidly in the lower courts on Guantanamo Bay detainee cases following the Supreme Court’s June 12 decision on the prisoners’ legal rights. Earlier in the day, this blog posted this report on developments up to that point. Following is an update on significant later activity.
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A federal judge in Washington, refusing to give up even temporarily the handling of 18 cases by Guantanamo Bay detainees seeking to challenge their captivity, moved forward with those on Wednesday, calling in lawyers for an update on the cases’ status on July 10. Among the 18 cases is the lead case that led to the Supreme Court’s decision allowing habeas pleas by the captives – Boumediene v. Bush (District Court docket 04-1166, Supreme Court docket 06-1195).
On a day when several of his colleagues on the District Court bench transferred habeas cases to a senior judge for coordination on common issues, District Judge Richard J. Leon declined to do so “at this time.” He then ordered counsel in all of those cases “to discuss common procedural and substantive issues” at 2:30 p.m. a week from Thursday.
It is unclear whether the judge’s action would mean those 18 cases would move ahead more rapidly than the other 250-plus cases now pending or soon to be filed in District Court. If the Justice Department and Pentagon chose, they could file documents seeking to justify continued detention of those prisoners first in the cases before Judge Leon, in hopes of getting an early precedent perhaps favorable to their view of detainees’ rights.
Judge Leon was one of two District Court judges whose rulings on earlier habeas challenges by detainees formed the basis for the cases that ultimately went to the Supreme Court in Boumediene v. Bush. The other case that went up, Al Odah v. Bush (docket 06-1196), had been handled by District Judge Joyce Hens Green. Judge Leon ruled that the detainees could get no relief in habeas, Judge Green found the captives had at least a due process claim against their continued confinement. The D.C. Circuit Court agreed with Leon’s ruling, but the Supreme Court reversed the Circuit Court last month. While the Supreme Court made clear that the prisoners have a constitutional right to challenge their detention in habeas petitions, it did not spell out the other rights they could claim. Those will have to be explored by the District Court judges initially.
Judge Leon gave no reason for declining to transfer cases for coordination under a resolution judges on the District Court had approved on Tuesday. At least half of his 14 colleagues transferred cases on Wednesday for coordination.
The judge assigned the coordination task for other cases — Senior U.S. District Judge Thomas F. Hogan — issued an order Wednesday afternoon setting a conference on “procedural and scheduling matters” in 121 cases for next Tuesday, July 8, at 2 p.m. The order can be found here. As those cases, and others transferred by other judges, proceed on coordination issues, they will do so under a common docket number (08-442, In re: Guantanamo Bay Detainee Litigation). Among tasks assigned to lawyers before that conference is a listing of detainees who still have cases in District Court, and suggesting a date for a status report on each case.
Meanwhile, in a somewhat unusual gesture, the District Court’s Chief Judge, Royce C. Lamberth, wrote to the D.C. Circuit Court on Wednesday, asking it to resolve promptly a number of pending cases that Justice Department lawyers had told him raised issues that bear upon the habeas cases in District Court. Attached to Judge Lamberth’s letter was a seven-page letter from Acting Assistant Attorney General Gregory G. Katsas, extensively discussing how the Justice Department suggests the habeas cases proceed. The Katsas letter makes a number of proposals that appear to be highly controversial, suggesting that the courts could have major difficulty resolving many of the issues they now face. The text of the Katsas letter can be downloaded here.
Judge Lamberth told Chief Judge David B. Sentelle of the Circuit Court that his colleagues on the District bench agreed with Katsas’ proposal for “prompt resolution” of the issues mentioned, adding “and we hope that you will bring to the attention of the judges of your Court our request for expedition in these and all Guantanamo cases. Our Court is committed to deciding these cases as expeditiously as possible, and any assistance or guidance your Court can give us will be greatly appreciated.”
Katsas’ letter, sent to Judge Lamberth June 30, said that the Circuit Court had before it now cases on the government’s authority to withhold some classified evidence from detainees’ lawyers, on the detainees’ claim that their lawyers must be told before any detainee is moved out of Guantanamo Bay, and on the question of whether Congress has taken away the power of District judges to consider, as part of habeas challenges, the conditions under which detainees are living at Guantanamo Bay — including questions of harsh interrogation techniques.
The assistant Attorney General added: “The government will seek definitive rulings on these issues from the court of appeals. Moreover, to the extent appropriate, we would encourage you to raise these cases with the Chief Judge of the Court of Appeals, as prompt resolution of these issues by the Court of Appeals would be helpful to all concerned.”
In other parts of his letter Katsas made these points:
** Under schedules suggested by the government, the District judges’ review of habeas cases could stretch “over the course of the next 12 to 18 months.”
** For detainees facing war crimes trials before military commissions at Guantanamo, the government would not supply its reasons why they should be denied habeas relief until after those prosecutions are over, so that no action would be taken in District Court on their habeas claims until then.
** In cases involving other detainees, not facing charges, their lawyers should not be allowed to demand significant amounts of additional information from the government about them, and definitely would not be entitled to the full range of information the government now holds about each detainee. Thus, factfinding in the habeas cases should be strictly limited.
** The government would begin filing its reasons for continuing to hold detainees — formally, the “returns” to the habeas challenges — within 60 days, but in batches of about 50 per month, thus producing that information over about a four-to-five month period for all the 250-plus detainees making challenges. The government, Katsas said, is “entitled to present its best case” for each detainee, and thus would have to update explanations it had previously filed in District Court.
** The legal issues that are common to detainees’ cases should be resolved in groups, not case by case for each individual detainee. Thus, any coordination of habeas cases in the District Court should not be limited to procedural or management matters, but should reach substantive legal questions. Once a common legal question had been answered in a coordinated way, the judge who originally had a given case could apply it to that case. This approach, Katsas suggested, would avoid the risk of “significant disagreement among individual district judges, which in turn would all but ensure a significnat number of reversals and remands on appeal.”
** Detainees’ lawyers would have to first consult with the District Court before they could file many motions, raising new issues other than testing the government’s evidence supporting confinement.
Katsas noted that the Justice Department has had four attorneys working nearly full-time on habeas matters, but now has authorized adding 50 more attorneys to its team.
