Judge Leon: Decisions on detainees by year’s end

By Lyle Denniston
on Jul 10, 2008 at 5:30 pm

NOTE: This post is part of continuing coverage of the lower courts’ role in implementing the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195), clarifying the legal rights of detainees held by the U.S. military.

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The federal judge who has opted to go it alone in ruling on Guantanamo Bay detainees’ challenges to their confinement vowed on Thursday that the 12 cases before him, involving 35 prisoners, will be “resolved THIS YEAR!”  With that kind of emphasis, U.S. District Judge Richard J. Leon set up a fast-track schedule that — unless interrupted by mid-case appeals, which he strongly discouraged — would get results over the next five months.

He promised to make some rulings swiftly from the bench, without writing opinions “tied up with bows and ribbons….I have 35 detainees — maybe more than any other single judge — and I can’t write 35 opinions.”

Bemoaning the fact that the detainees “have been sitting and waiting for five years,” the judge strernly promised to summon Defense Department and Central Intelligence Agency officials to his courtroom, put them in the witness chair, and compel them to explain — if it happens — “why they are not meeting their responsibilities” to help keep the cases moving in court. He made the comment after a Justice Department lawyer said that clearing up some problems over access to secret information about the detainees might be out of his Department’s hands.

Judge Leon has chosen to process the cases before him from the outset, rather than taking part in a coordination efforts that his colleagues on the District Court in Washington have embraced. Keeping to his promise at the opening of a 90-minute hearing to do most of the talking, Leon spelled out for the lawyers how he intended to keep them at work on nights, weekends and without vacations, and how anybody who did not go along would have to answer to him.  “You should roll up your sleeves,” and so should officials involved in any government agency affected, he said.  “As I read the Supreme Court opinion [in Boumediene v. Bush], these cases are to be treated with great expedition.”

As the hearing moved on, it took on an informal air as the judge openly negotiated and engaged in some bartering with lawyers in the courtroom and on a telephone conference call, as he urged the platoon of attorneys to use their skills to devise new and quicker techniques for sorting out the issues.  Under his timetable, Judge Leon said, the next two months would be devoted to “identifying the problems and finding ways to solve the problems.” After that, he said, the cases would go on an “accelerated briefing and hearing schedule,” leading to final decisions, some of which he said he would make “on the spot.”

One of his concerns, the judge said, was that the cases be moved along “before they fall into the black hole of transition” — an apparent reference to the fact that the Nation will elect a new President in November, and the new government taking power in January will bring in new occupants of agencies involved with the detainee cases, probably slowing them down considerably.

The first step in the judge’s assignment to lawyers on both sides is to file status reports on each detainee’s case by July 18.  Then, with those reports in hand, the judge would meet behind closed doors with attorneys for both sides on July 23 and 24.  The session on the 23rd would be devoted to eight cases each of which involves only a single detainee. The next day, the discussions will focus on the four other cases he has, including multiple detainees in each. 

The status reports, Judge Leon instructed, are to include statements of issues common to the cases, factual histories of when and where a detainee was captured and what information was used to justify capture and detention, whether a detainee has been cleared for release but is still confined, and procedural and legal questions the attorneys see arising in the cases.

But just as soon as the judge had finished spelling out what he expected , detainees’ lawyers — on the telephone or in the courtroom — began listing the cases in which the Pentagon has supplied no responses to the legal challenges by the detainees. Said a lawyer on the telephone from San Diego, “It will be difficult to prepare a status report if there has been no factual ‘return’ at all.” As it turned out, the cases with that complication totaled at least eight of the cases before Judge Leon.

It was at that point that the judge began encountering problems over producing , and providing lawyers’ access to, classified information gathered by the Pentagon and the CIA (and perhaps other agencies) about individual detainees.  This is not only a problem of getting clearance for lawyers to see information marked Secret, Acting Assistant Attorney General Gregory G. Katsas told the judge; it is also a question of whether attorneys — even if cleared — have what is called “a need-to-know” secret data.  The Justice Department does not have the power to release secrets until other agencies determine if those who would receive them have a “need to know,” Katsas said.  And, he added for emphasis, the Supreme Court’s Boumediene decision did not put “any constraints on the Executive Branch in making need-to-know determinations.”

Ultimately, Judge Leon appeared to have brokered a partial compromise, in which detainees’ lawyers will approach the Justice Department directly and try to work out access at least to unclassified data about the detainees they represent, and then government lawyers will have to come to the July 23 and 24 status conferences with explanations of how much of its potential evidence against each detainee is classified and cannot be shared with detainees’ counsel.

It was during those exchanges that the judge repeatedly warned that he would not allow the classified information problem to bog down the cases.

Judge Leon demonstrated the kind of assertive role he intended to play by telling one of the detainees’ lawyers, Stephen H. Oleskey, that he expected the Pentagon to take steps to assure that the lawyers have more opportunity to meet with their clients at Guantanamo Bay as they try to prepare their cases.  Oleskey had complained that the Pentagon follows rigid travel limitations on attorneys, and does not allow them to talk with any other detainees who might have information about their clients.

The judge is expected to issue a detailed order in the next few days making formal his expedited schedule.