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Detainees: U.S. must be punished for delay

In a plea for a stiff rebuke of the federal government, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions.  Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance.

“The Court must do more than tell [the government] to go and sin no more,” the detainees said in a filing before Senior District Judge Thomas F. Hogan, who is overseeing coordination of scores of detainees’ habeas challenges — challenges authorized by the Supreme Court nearly three months ago.  “No private party,” the document contended, “would dare treat the Court’s deadlines as merely aspirational or be allowed to do so.”

In a series of escalating remedies for the official delays, detainees’ counsel proposed: first, Judge Hogan should not even consider the government request to stretch out filing deadlines for its responses to habeas petitions because the request allegedly violated court rules; second, as an alternative, the Judge should formally deny any relaxation and order the government to keep to the schedule it proposed; third, the Judge should deny any after-deadline requests by the government to file updated responses unless a detainee’s lawyer agrees to allow it; fourth, the Judge should give the government only seven days to file the initial responses that already are past due; and, fifth, if existing and future deadlines are not met, the Judge should punish the government by ruling in favor of detainees’ challenges by “default,” by limiting what evidence the government can offer, and, perhaps, even by imposing some kind of fines on the government.  “Nothing less will do to ensure [the government’s] future compliance with the Court’s deadlines and protect [detainees’] rights.”

Besides criticizing government agencies for the delays, the new filing challenged the need for the Central Intelligence Agency to review all of the classified mateial the government may use in seeking to justify individual detentions.  Attached to the filing was a sworn statement by a former intelligence officer — Matthew B. Kaplan, now a lawyer for three Guatanamo prisoners — that suggests there is no need for this “unusual” level of review of secret data.  The declaration can be read here.

The government on Aug. 29 — the day set at its request as the first deadline for filing 50 responses in detainee cases — asked Judge Hogan for another 30 days to supply all of those responses. (The request was discussed in this post.)  With apologies, the Justice Department said it had underestimated the time it would take to complete the responses, and get the secret information in them reviewed by the Central Intelligence Agency before passing them along to the courts.  It said it would make an effort to get back on the 50-a-month schedule Judge Hogan had set.

Then, on Tuesday, the Justice Department made a similar request for relaxation of deadlines to District Judge Richard J. Leon — a judge who is handling alone the detainee cases before him, without running them through Judge Hogan’s coordination process.  Again citing unanticipated difficulties in preparing responses and in getting CIA review, the Department said it needs an extra 30 days to meet Judge Leon’s schedule.

The strongly worded counter-filing by detainees’ counsel filed with Judge Hogan Tuesday — and a response along the same lines that is expected soon in Judge Leon’s Court — could put pressure on the judges to move the habeas cases along at a faster pace, as well as possibly gaining some tactical advantage by curbing the government’s options as it tries to put on stronger cases to justify continued detention of the Guantanamo prisoners

Both Judge Hogan and Judge Leon have stressed in public hearings since the Supreme Court issued its habeas ruling that they will insist on energetic efforts by all affected government agencies to keep the detainee cases on a rapid schedule.

Leon, in fact, has threatened to summon Pentagon and other government officials into his Court, to take the stand and justify to him directly any flagging of efforts to respond promptly to the detainees’ challenges.

Such admonitions led the Justice Department, in its new filings before the two judges, to write at length about the details of the complications they say they have encountered in keeping to schedules.  The Department offered both a public, and a private, secret, statement by CIA Director Michael Hayden to explain some of the delays in processing.

But the detainees’ lawyers, in their new challenge, sharply criticized those explanations.  The government, they said, is offering “only to do what they can, in their own fashion and at their own pace, to meet the Court’s deadlines, and just too bad for [detainees] if [the government does] not come through.”

Seeking to belittle the promise to catch up, the filing argued: “It does not take a crystal ball to anticipate what [the Department] will be telling the Court a month from now.”

The Justice Department presumably will have a chance to respond to this opposition before the judges act on the delay problems.