Major victory for U.S. in detainee cases
on Dec 16, 2008 at 7:18 pm
UPDATE Wednesday 2:45 p.m.
In a new order issued Wednesday afternoon, Senior Judge Thomas F. Hogan ordered lawyers on both sides of the 113 cases he is coordinating to report jointly to him by Jan. 5 on whether some of those cases can be consolidated for trial on the detainees’ challenges. The order said that the judge’s review of the records in the cases indicated that a number of the cases “may involve similar, if not identical, factual issues” and that they could be tried more efficiently in “consolidated proceedings.” The two sides were ordered to meet and confer before preparing their joint report. If cases are consolidated, they presumably would move along more rapidly once trials begin. Detainees’ lawyers, however, have resisted joint proceedings up to now, arguing that each detainee’s case is different. The judge’s new order is here.
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 In a major break for the government, a federal judge on Tuesday cut back sharply on the information that the Pentagon and other agencies must turn over to Guantanamo Bay detainees or their lawyers as they try to challenge prolonged captivity. Lawyers for detainees protested immediately that the changes would make it much harder to contest the government’s pursuit of continued detention.
Senior District Judge Thomas F. Hogan, who is coordinating 113 cases involving some 200 detainees, yielded to strongly worded government demands on most of the key points in dispute over how those cases are to unfold in District Courts in Washington. Hogan agreed to revise an order he had issued about six weeks ago on the framework for other judges to follow as habeas cases moved to actual trials. The revisions went considerably further than Hogan had hinted at a hearing last week.
The new order revising Hogan’s “case management order” of Nov. 6 can be read here. The habeas cases are proceeding as a result of the Supreme Court’s decision June 12 in Boumediene v. Bush, finding a constitutional right for detainees to go to court to challenge their captors.
The judge said he would make no further changes. That set the stage for a dozen other District judges to start moving to review the 200 detainees’ claims that they are being wrongly imprisoned. The one hope that detainees’ lawyers have for regaining some of what they lost Tuesday is that they may ask these other judges — called “merits judges” because they will actually decide who may be further detained — to restore what Hogan had deleted. Those judges are not bound by the Hogan order, but many are expected to follow it in whole or in part. (The most significant changes made by Hogan are in the continuation of this post.)
Here are the most significant changes Hogan made:
** The government now will not have to supply to detainees themselves any “substitute” version of classified information. Detainees’ lawyers will be allowed to see classified information, if properly cleared, but they cannot tell it to detainees to seek responses to it. The government may also ask a judge to excuse it from giving secrets even to cleared attorneys for detainees.
** The government does not have to conduct a wide search throughout federal agencies for information it has about detainees that could help their lawyers challenge the reasons for further captivity.  All that must be turned over is evidence examined by government lawyers who prepared the reasons for detention or evidence that was gathered by the government in preparing for the habeas cases.
** The government will not have to disclose to detainees any documents or other materials in government possession that are mentioned in any habeas file by the government, unless the government actually relies on the document to justify detention. That includes statements that a detainee personally may have made. This is significantly narrower than the disclosure requirement in the Nov. 6 order.
The only government requests for change that Judge Hogan declined to make were a stronger benefit-of-the-doubt rule (a “presumption”) in favor of the government evidence, to allow more evidence from sources who would not testify, to relax a requirement for hearings on evidence to assure that hearings would not be required in each case, and to stagger some of the filing deadlines the judge had imposed.
Vincent Warren, executive director of the Center for Constitutional Rights, said the decision to withdraw the government’s duty to supply to detainees substitutes for secret data “will effectively prevent counsel, who cannot share classified information with their clients, from discussing evidence and preparing a response with their client’s assistance.” That change, he added, also will allow the governement to “continue to use secret evidence to hold prisoners.”
Warren did praise the judge, however, for taking a step that the attonrey said could prevent delaying the cases into late next year or 2010. That was apparently a reference to the fact that Judge Hogan turned down a government request to allow it to file an immediate, emergency appeal to the D.C. Circuit Court to relieve it of some of the obligations of the Nov. 6 Hogan order.
But the judge’s refusal on that point did not appear to be much of a loss for the government. The request for an immediate right to appeal was an alternative request, if the judge did not make the requested changes. With the changes that Hogan did agree to make, there seemed to be few items left in his underlying order that would provide the basis for a government. appeal.
Although detainees’ lawyers expressed disappointment at Hogan’s key revisions, they are not likely to attempt an appeal. They had argued strenuously that the issue over Hogan’s order could not be appealed at this stage.  Thus, they are expected to turn now to the “merits judges” to seek changes to aid their challenges.
