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Some re-shaping of detainee cases may come

The federal judge coordinating the cases of some 200 Guantanamo Bay detainees challenging their long-term confinement gave hints on Wednesday that he may re-shape somewhat how those cases are to be handled by more than a dozen other federal judges. The most likely point of change, it appeared, would be some relaxation of the government’s duty to search widely throughout an array of intelligence and other agencies for information that would help the detainees in their challenges.

At the same time, however, Senior U.S. District Judge Thomas F. Hogan seemed not inclined to make wholesale revisions that would seriously compromise the detainees’ chances of defending themselves against further captivity.  And Hogan did not react favorably to the government’s alternative suggestion that he send the entire controversy over the shape of the detainee cases up to the D.C. Circuit Court, saying that might require another four years to get the cases decided finally.

Even as it is, the judge suggested that, at best, the detainees cases could be decided altogether by no sooner than next spring or summer. A Justice Department lawyer indicated it might be by the end of the summer — more than a year after the Supreme Court’s June 12 decision giving the detainees’ a constitutional right to go to court to challenge their captivity (Boumediene v. Bush).

At one point near the end of the one hour, 40-minute hearing, Judge Hogan raised the prospect that six months of work by judges and lawyers to work out ways to implement the Supreme Court’s Boumediene decision might come to nothing. Without directly mentioning President-elect Barack Obama and his thoughts about closing Guantanamo Bay entirely, Hogan said “one thing that concerns” him is that a shift of the detainees to the U.S. could take away the Washington federal courts’ authority to decide the habeas cases.

Hogan promised a decision “within the next week” on the government’s plea for sweeping changes in the order he issued Nov. 6 setting up the framework for 113 detainee habeas cases involving more than 200 Guantanamo prisoners.  Briefly discussing what he would be thinking about as he made that decision, the judge strongly implied that he would reject the detainee lawyers’ suggestion that his Nov. 6 order was not open to any change, and their broader argument that he should not even consider the government’s plea for change because Justice Department lawyers failed to meet with detainees’ counsel to try to work out compromises before going to court with the proposal for wide-ranging alterations of the Hogan order.

At the center of the controversy is what is called a “case management order” — a blueprint drawn up by Hogan, in his role as coordinating judge, that spells out the process for actual trials of the 113 detainee cases under his temporary supervision. That order, or variations of it, are expected to be followed by a dozen other judges in Washington, once Hogan has finished laying down the framework and returned the cases to those judges for habeas trials.

If Hogan does not make significant changes in the order, Deputy Assistant Attorney General John O’Quinn said at Wednesday afternoon’s hearing, it would be months, not weeks, before any habeas trials could even start.

That’s because, he argued, significant parts of the case management order imposed significant new evidence-gathering burdens on the government, involving much classified information that intelligence agencies have to go over line-by-line, page-by-page before allowing the data to be put in court papers, even in classified form.

“There is no file on a shelf with everything there is on a given detainee,” O’Quinn said. “Guantanamo is, first and foremost, an intelligence operation,” with many agencies involved in its activities and in information-gathering.  “This is a world of intelligence,” he said, “not a criminal evidence locker.”

O’Quinn focused his argument on three basic changes the government wants made in Hogan’s order: nullifying a requirement that the government turn up and hand over information that might aid the detainees’ challenges, nullifying a requirement that the government hand over any documents or statements backing up the government’s reasons for detention, and overturning or relaxing a requirement that the government share classified information or “substitutes” with detainees and their lawyers.

The first of those obligations, O’Quinn said, would require the government to spend 50,000 man-hours — a figure that Judge Hogan seemed to find impressive.

The government lawyer also contended that the Hogan order, if left as is, would lead potentially to a massive disclosure of highly classified information, including secrets on how the government gathers intelligence.  Whatever rights the detainees have, he contended, they have no right to compromise the nation’s intelligence operations.

Hogan, at points in the hearing, was openly skeptical of some of O’Quinn’s arguments, suggesting that the Supreme Court’s decision in Boumediene gave the federal courts wide latitude to fashion new procedures for deciding the detainee cases.

The judge also wondered openly why the government’s lawyers had not come up with many of their new objections before he crafted his case management order.  He also admonished lawyers on both sides to do more to cooperate and find new ways to move the habeas cases along, to head off what he said could be years more of litigation over the detainees’ fate.  The judge commented: “It doesn’t help [the detainees] to win cases in the Supreme Court, if it takes fiveyears to get there.”

Speaking for all of the detainees, Washington lawyer David Cynamon opened his argument with strong criticism of the government, for failing to meet with detainees’ lawyers to work on procedural problems, for using every opportunity to delay the cases, for failing to give detainees’ lawyers backup information on reasons for detention so that the detainees could respond, and for failing even to say when such information would be provided.

“I think,” Cynamon said, “sometimes the only way to get the attention of a mule is to hit it over the head with a two-by-four.” That, he said, may be what is needed to get the government to “move on” to get the cases decided.

Although the lawyer was reluctant to discuss specifically the government’s challenges, arguing that they were not properly before Judge Hogan now, he did defend vigorously the requirement that the government have a continuing obligation to share with detainees’ lawyers anything it has that might answer the reasons for detention.

“The government has a virtual monopoly over all of the information in these cases,” he said. “We start with a huge, huge disadvantage.”  The materials that the detainees’ lawyers need, he said, are the “core materials” that would help them make their case for release.

If the government has problems with Hogan’s order, it can take that up, case by case, with the individual District judges when the cases are returned by Hogan to those judges for trial, Cynamon argued.

When Cynamon stood up later, as the hearing was about to close, and offered to make an argument against shifting the whole controversy up to the Circuit Court (wondering, sarcastically, if Hogan was “going to buy that used car”), the judge said that, without indicating what he would decide on that point, he did not need to hear argument on it.

Because of the government’s challenge to Hogan’s Nov. 6 order, all of the detainee cases covered by that order have stopped their progress toward merits trials.  The judge lamented that fact Wednesday.

In the end, he said he would take into account both the government’s national security worries, and the fact that the detainees had filed the first habeas challenges nearly seven years ago, yet they “have not had their day in court.”