UPDATE: Bismullah effect spreading?
on Aug 29, 2008 at 1:51 pm
UPDATE
 Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court. In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.
At the center of this dispute is the D.C. Circuit Court’s two rulings last year in Bismullah v. Gates (Circuit docket 06-1197), laying down a potentially wide-ranging requirement on the government to disclose what it has in perhaps several federal agencies’ files about individual detainees, so that the information can be tested to see if it justifies further detention of those at Guantanamo.
As of now, the Bismullah mandate only involves detention cases being reviewed by the Circuit Court. Even that, however, has upset federal agencies — especially intelligence agencies — because they contend it could interfere with efforts to protect national security secrets and intelligence methods. Justice Department lawyers were not able to get the Supreme Court to overturn the Bismullah decisions on the first try, but now are contemplating another.
On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. (The document making this request, a “notice of subsequent authority,” can be read here.)
Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday.
The detainees’ plea is based on this chain of logic: the Circuit Court has put its Bismullah decisions newly into effect after they were sent back by the Supreme Court; Bismullah applied to the government’s obligation in detainee cases before the Circuit Court, but the Supreme Court in Boumediene found the law governing those cases (the Detainee Treatment Act) to be an inadequate substitute for habeas proceedings; the Supreme Court also made clear that habeas would be a broader review than what the Circuit Court would do under DTA and Bismullah, and thus the detainees in their habeas challenges — involving the “more rigorous” form of judicial review — should get the same access to such a broader array of government information.
The government has already signaled that it is vigorously opposed to any extension of Bismullah to other cases, and, in an earlier brief in Judge Leon’s Court, made clear its view that the mandate “does not provide a helpful guidepost for determining the scope” of its duty to disclose information in habeas cases. Bismullah, it contended, was “wrongly decided” and had been vacated by the Supreme Court. (That brief was filed before the Circuit Court reinstated Bismullah.)
Bismullah, the Department brief said then, “addressed the requirements of a unique regulatory and statutory scheme that is not at issue here” — civilian court review, limited in scope by the Detainee Treatment Act of 2005, of Pentagon detention decisions.”
In a habeas cases, the Department added, each side will be producing “its own evidence” on the validity of detention in order to address the constitutional right of individuals (now recognized by the Supreme Court) to contest their captivity. Bismullah, it noted, had nothing to do with the Constitution.
Detainees are seeking in District Court a Bismullah-like disclosure duty on the government’s part primarily to assure that anything that might help the detainees’ challenge gets brought out in court, and the government should thus have an ongoing duty to product it, in full.
Judge Leon has already reacted somewhat cautiously to a request of detainees’ lawyers to force the government to seek out information that would help the detainees’ cause. In his “case management order” this week, the judge said the government would be obliged to produce information that helps detainees only if it is contained in the materials government lawyers are preparing to submit in habeas cases.
It is not clear, however, that Judge Leon, at the time he issued that order on Thursday, had considered the detainees’ counsel’s new plea — filed the day before — to expand the government disclosure obligation under Bismullah.
