Saying that the two sides are “at loggerheads” over how much information the D.C. Circuit Court will need to judge decisions by the military to keep detainees at Guantanamo Bay, the Justice Department on Monday asked for more time to sort out what it is prepared to hand over. In a motion for a temporary stay (download here), the Department strongly hinted that it will be asking the Circuit Court to rehear and to narrow its July 20 decision expanding the government’s obligation to produce documents about detainees.

The Circuit Court’s July ruling came in the combined cases of Bismullah v. Gates (06-1197) and Parhat v. Gates (06-1397), chosen as the vehicle for laying down basic ground rules on how panels of the Circuit Court will proceed as they review the work of military “Combatant Status Review Tribunals.” Those are the entities set up by the Pentagon to decide whether a given detainee is an “enemy combantant” and thus must remain in confinement at Guantanamo Bay. Under a 2005 law (the Detainee Treatment Act), the Circuit Court becomes the first civilian court to judge the legality of detention decisions by the Bush Administration’s Pentagon. The first test case under DTA is Paracha v. Gates (06-1038).

It was in the Paracha case that the government filed its stay request on Monday. It said it will decide by a Sept. 13 deadline whether to seek rehearing in the Bismullah/Parhat case. But Sept. 13 is also the current deadline for the government to hand over to lawyers for Saifullah Paracha the much more expansive file of information that the Bismullah/Parhat ruling seems to require.

So, the motion sought a 30-day delay beyond Sept. 13 — that is, until Oct. 13 — if the governmen were to decide against seeking rehearing of Bismullah/Parhat. If it does go for rehearing, the Department asked for a delay to continue until 30 days after the Circuit Court acts on the rehearing request. But, the motion argued, in no event should it have to produce its file of information earlier than 30 days beyond Sept. 13.

Ever since the Bismullah/Parhat case came down, a chasm has been growing between government counsel and detainee lawyers over how far the government should be required to search in a vast database of often-classified material to locate and produce information that bears upon the status of individual Guantanamo detainees. The Bismullah/Parhat decision appeared to lean toward the detainee lawyers’ side of that information gulf, but that ruling did not answer all of the specifics that are now arising over the government’s obligation.

Behind the disagreement over a record for judicial review lies an even more important dispute — one that has constitutional implications. The government contends that the Circuit Court’s task under DTA is only a narrow one, essentially to determine whether the CSRTs followed their own procedures. It has argued against a full-scale review of detainee information. At the same time, however, it has argued that the DTA process is an adequate substitute for habeas challenges by detainees. The detainees’ lawyers, however, argue that the DTA process is far from an adequate substitute for habeas; only if DTA review is comprehensive, even sweeping, those lawyers have argued, might it be a constitutional substitute for the habeas rights that Congress took away from detainees in the Military Commissions Act of 2006. This is a constitutional debate, by the way, that is going to play out before the Supreme Court next Term, when it rules on detainees’ legal rights and on the validity of the scuttling of habeas review for detainees (in the consolidated cases of Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196.

Monday’s filing by the Department appeared to be prompted, in substantial part, by broad, detailed demands by detainees’ lawyer for information in an array of government agencies’ files. The Department complained to the Court in the new motion that what the other side is now demanding “would entail a massive production effort equivalent to discovery in normal civil litigation.”

If that broad interpretation of the government duty prevails, the motion argued, “the bell that will be rung” in complying “cannot be unrung,” even if it should turn out that the Circuit Court does agree to rehear, and perhaps to narrow, the Bismullah/Parhat ruling. The Department indicated that, while it disagrees strenuously with the interpretation that detainees’ lawyers are putting on the information-production requirement, the government believes that even a narrow interpretation of Bismullah/Parhat as it now stands would entail a record “likely to comprise large quantities of material that have never been reviewed or assessed with an eye to whether they are too sensitive to provide to opposing counsel.”

It added: “Identifying and compiling the relevant and reasonably available information in the possession of the government, and then conducting a review for ‘need to know,’ even in this case alone, is an onerous and time-consuming process that will take substantial resources of and coordination by several agencies in the government.”

In the motion, the Justice Department did not commit itself to seeking rehearing of
Bismulah/Parhat. It said that it had begun the process of selecting “test cases,” such as Paracha’s, to determine what questions will arise in producing a broad file of detainee information for the Circuit Court. One reason for that process, it said, is to help it decide whether, in fact, it needs to seek rehearing and, if rehearing is sought, what arguments need to be assembled “as to why that ruling should be reheard, narrowed, or clarified.”

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